The name will be announced later this week. The president, a former reality show host, has a penchant for dragging out nominations in an orgy of egocentric pomp, one of his many corrosive influences. But indecent haste has driven Trump to promise to name a person willing to fill Justice Ruth Bader Ginsburg’s seat this week, just days after her death. Likely a woman. Probably Amy Coney Barrett, a conservative Catholic professor Trump gave a federal judgeship to less than three years ago.
Of course, it might be someone else. We don’t know yet, but even now we can be certain that by accepting the nomination, Trump’s chosen one is confessing that they are unfit for the office.
This isn’t because the pussy-grabbing serial liar would naturally be drawn to candidates that reflect his paucity of principle and empathy—that’s certainly true, though Trump isn’t really selecting judges, he’s outsourced that critical role to the ultraconservative Federalist Society. It’s because any nominee willingly wading into this partisan duplicity lacks the character to sit on the high court.
Above all, judges must be impartial and must have integrity. Nobody who possesses those traits could accept this nomination.
Republicans promised voters last presidential election that they, the voters, would decide which party gets to fill a seat in an election year. When Justice Scalia died 269 days before the 2016 election, McConnell immediately announced, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”
His ilk agreed. Sen. Ted Cruz (R-Texas) appears on Trump’s Supreme Court shortlist and sits on the Senate Judiciary Committee. In 2016 he said, “It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.”
As chair of the Senate Judiciary Committee Republican Lindsey Graham can decide on his own if Trump’s nominee gets a vote, and in 2016 he was clear: “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, ‘Let’s let the next president, whoever it might be, make that nomination.’” He reiterated less than two years ago, “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election.”
We are in the middle of a partisan election right now. Election Day may be 43 days away, but many people, including myself, have already voted. In a new poll, Americans agreed that the seat should not be filled until after the election, including half of all Republicans.
By taking part in a dishonest Republican power grab, the would-be justice admits that they are partisan and corruptible, not impartial and principled. Without doubt the next justice will decide whether the Democratic or Republican parties win at the Supreme Court. Even if they possessed the temperament to do so impartially, the appearance to all sends a very different message. And if Trump and McConnell have their way, this new justice might even help decide the fate of the 2020 election.
As Trump and McConnell have stacked the federal bench, integrity and impartiality are increasingly rare traits. Many of us who seek to defend in advance progressive causes believe that there is a bloc of justices on the Supreme Court—two of them Trump appointees—that has dispensed with a partiality, barely clinging to the fig leaf for the sake of the court’s legitimacy. In some fields, such as reproductive justice with a separation of state and church, even the pretense is all but gone. But that comes with a cost. The court has a legitimacy crisis and Trump and McConnell are about to rip that wound open.
Impartiality and integrity are ethical commandments for federal judges. The Code of Conduct for United States Judges lays out ethical canons. Canon #1 says that judges must uphold the integrity and independence of the judiciary. Canon #3 requires that judges perform their duties fairly, impartially, and diligently.
For no credible reason the Supreme Court has no written ethics rules; its unwritten rules ought to be the same. In their desperation to win and retain power at all costs, McConnell and Trump have created an impossible catch-22. Whoever joins Donald Jump in the deranged rose ceremony that has become the announcement of a new nominee isn’t just selling their soul to an authoritarian devil, they’re signing it over on camera, for all to see.
No principled jurist would accept this nomination. No honest or honorable justice could. The Republicans may not be better than this unseemly, unprincipled exploitation of Justice Ruth Bader Ginsburg’s death, but the next justice must be better. Any nominee Trump approaches for this position ought to decline and direct Trump to Justice Ginsburg’s final public statement, her deathbed desire: “My most fervent wish is that I will not be replaced until a new president is installed.”
