The Process Surrounding the Supreme Court Nomination is Damaging Public Trust in Our Institutions – Statement of the New York City Bar Association

The New York City Bar Association issues this statement out of its grave concern that the long-term integrity and legitimacy of the Judiciary is being imperiled by the unprincipled opportunism of the Senate in the exercise of its Constitutional power of advice and consent with respect to the nomination of Judge Amy Coney Barrett to the Supreme Court.

EXECUTIVE SUMMARY

The Senate majority’s complete about-face on the issue of whether to consider a Supreme Court nomination in a Presidential election year – mere weeks before the election and after voting in several states has started – is opportunistic, unprincipled and extremely troubling.[1] This reversal acts to politicize and erode public trust in the confirmation process, especially when viewed alongside President Trump’s statements that he expects the upcoming election to be decided by the Supreme Court because of purported widespread election “fraud” being perpetrated by his political opponents.

In such an environment, the Senate’s double standard may fairly be interpreted as an effort to tilt the Court in anticipation of a Constitutional fight over the election results.  At the very least, this appearance of impropriety threatens the public’s acceptance of the Court’s impartiality, particularly at a time when it is unlikely that the Senate is in a position to properly meet, confer, debate, deliberate or examine the record of the nominee.[2]  Current conditions significantly challenge the Senate’s ability to fully and faithfully discharge its duty under the Constitution, and causes us to ask if the nomination should be rushed through at this time and in the circumstances before us.

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There are competing arguments about whether the Senate ought to consider Supreme Court nominations in the final year of a President’s term.[3]  That apart, we are concerned that the inconsistent actions and public statements of the Senate’s leadership with respect to the nominations of Judge Merrick Garland and Judge Coney Barrett have served to deepen the public’s cynicism about the importance of the Senate’s Constitutional role in providing “advice and consent” to Supreme Court nominations.[4]  Moreover, the speed with which the Senate is taking up this nomination – against significant hurdles given the recent COVID-19 illnesses on Capitol Hill – corrodes the public confidence in the process upon which our system of government depends.  For the last nine Justices nominated to the Supreme Court, the Senate took an average of 79 days between nomination and confirmation.[5]  Here, the unusual timeline alone – there are only 23 days before Election Day and voting has commenced in some states – sends a message that the process is being rushed.

The Senate’s decision cannot be viewed in a vacuum.  The President’s recent comments, as well as those of some Senators, have injected a serious concern into the nomination process:  that political control of the Senate should be leveraged to determine a future Supreme Court decision on the legitimacy of a forthcoming Presidential election.  To be sure, Presidents have long sought to nominate Justices who share their beliefs on broad policy issues.  In this instance, however, the timing of the nomination and the speed with which it is being reviewed by the Senate, notwithstanding the obstacles facing the Senate’s ability to meet and confer, is alarming.  No matter how cleverly worded, accompanying statements by the President and Senate leadership send a dangerous message to the public:  i.e., that they seek to obtain a favorable Supreme Court vote on any possible challenge to the November election, which the President has promised to challenge if he loses.[6]

These actions and statements undermine public respect for the independence of our Judiciary generally and of the Supreme Court in particular.  To be clear, it is not the purpose of this statement to anticipate how the Justices would rule if an election challenge does reach the Supreme Court or to assume that the Justices would not act independently of political concerns.  However, the impression being created by the President and Senate leadership is harmful to the public’s perception of whether the Supreme Court can independently rule on an election that the President paints as “rigged” and “corrupt” and in need of correction by the Court.[7]

The plain inference of these comments is that the President wishes to expedite Judge Coney Barrett’s confirmation in order to ensure his own victory in a potentially divided Supreme Court following adverse results in an election that he has promised to dispute.  This is misguided on many levels.  For one thing, in our Constitutional system, the President is selected by the voters, through an Electoral College process that has governed Presidential elections for more than 200 years, since the enactment of the Twelfth Amendment.  No court – whether the Supreme Court or an inferior court – is to be involved in the selection of the President, and the Constitution conspicuously leaves the Judiciary out of the process.  Second, at their core, the President’s statements falsely imply that Supreme Court Justices are not impartial arbiters of justice and that the President calls the tune of the Justices he nominates. This is a disturbing, corrosive and dangerous perception and one that has no place in our system of judicial administration.  Finally, the President’s comments, coupled with his public demand for immediate confirmation of Judge Coney Barrett, serve not only to undermine public respect for an independent Judiciary, including the Supreme Court itself, but to also threaten the legitimacy of the democratic process by which our nation selects its President.  No Senator, regardless of party, should wish to enable this misperception.

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We issue this statement to raise these grave concerns about public respect for the rule of law and the Constitutional roles of the Senate, the Judiciary and our nation’s voters.  We believe that all Americans should share in these concerns, stay engaged, speak out on behalf of independent justice and the rule of law, and demand accountability and integrity from our elected officials. ​

Sheila S. Boston

President

New York City Bar Association

October 11, 2020