Should Barrett have declined the White House swearing-in?

Should Barrett have declined the White House swearing-in?

There are three objections to last night’s festivities being made today, one of which is silly, another of which is weak if not quite silly, and the last of which is more compelling.

The silly one: White House ceremonies for newly appointed justices are bad in principle. It’s foolish for officials who are supposed to be nonpartisan and independent to let themselves be used as props by political actors like the president at political events.

I’m sympathetic to that point in the abstract, but, ah, it’s late in the game to worry about it now. Showing off new SCOTUS appointees isn’t a Trump thing. It’s a president thing:

Read Dan’s thread and you’ll find links to White House ceremonies for various recently appointed justices, Republican and Democrat. If your problem with the Barrett ceremony is that judges should be above this sort of stuff, you’re setting a special standard for Trump nominees that their predecessors weren’t held to.

The weak but not totally silly one: White House ceremonies for newly appointed justices are okay in principle but not this close to an election. The circumstances in which Barrett is joining the Court are highly unusual, a matter of 40 days from the vacancy opening to her filling the seat in order to deny Democrats the chance to argue that they should make the appointment if they win big next week. Because the electoral context looms so heavily in her case, she should have politely declined Trump’s invitation and opted for a low-key swearing-in at the Supreme Court instead.

I agree that having a justice do a White House event during a campaign, particularly the home stretch of a campaign, is a bit queasier than usual. But there’s no reason to believe Barrett will be more or less likely to rule in Trump’s favor in a case involving the election because of the timing of her appointment than Gorsuch or Kavanaugh. Everyone on the Court has had their star turn at the White House after being confirmed; every one of them has certain partisan inclinations. Are Sotomayor’s and Kagan’s votes against Trump any less assured because they did the buddy-buddy thing with Joe Biden’s former boss at the White House years ago instead of more recently? The timing argument is underwhelming.

The more compelling one: White House ceremonies for newly appointed justice are okay in principle, even close to an election, but not when the president has gone out of his way to undermine perceptions of the appointee’s independence. Let’s go back to September 23, days after Ruth Bader Ginsburg passed away. Trump was already scrambling to make the case that the seat needed to be filled before the election. And, as usual, he wasn’t subtle about his motivations:

“I think this will end up in the Supreme Court. And I think it’s very important we have nine justices,” Mr. Trump said Wednesday, speaking to state attorneys general and reporters about the November race during a meeting on social media…

“But I think it’s better if you go before the election because I think this — this scam that the Democrats are pulling — it’s a scam, the scam will be before the United States Supreme Court,” the president continued. “And I think having a 4-4 situation is not a good situation, if you get that. I don’t know that you’d get that. I think it should be 8-nothing or 9-nothing. But just in case it would be more political than it should be, I think it’s very important to have a ninth judge,” Mr. Trump said.

If you didn’t know anything about him, you might read that and think, “Well, all he wants from the Court is certainty. The country can’t tolerate a deadlocked SCOTUS being forced to defer to a lower court. We need clarity in a case that would decide the presidency.”

But we do know things about Trump. We know how he craves loyalty from his deputies and appointees. He allegedly demanded loyalty from James Comey at their private dinner soon after taking office. He was reportedly furious at Neil Gorsuch’s show of disloyalty during his confirmation hearing when Gorsuch obliquely criticized Trump’s comments about judicial partisanship. Jeff Sessions’s refusal to show loyalty by retaining control of the Russiagate probe earned such intense and abiding hatred from Trump that the president told donors recently that he might have endorsed Democrat Doug Jones if Sessions had won the Republican Senate primary this summer. Sources are whispering to Axios this week that cabinet officials ranging from Chris Wray to Mark Esper to Gina Haspel are all on the chopping block if Trump wins reelection, all for essentially the same sin — disloyalty.

It’s a specific kind of disloyalty too, the disloyalty they’ve displayed by not using their official powers as public servants to damage Trump’s political enemies when they had the chance. The creepiest thing about Trump as president, light years worse than the tweets or his kinship with international autocrats, is that he’s never recognized a distinction between his public office and his personal interests. That’s the whole Ukraine impeachment saga in one sentence. It’s also why he feels no compunction about using the official presidential residence for partisan events like the Republican convention or that de facto rally he held after recovering from COVID even though both were nakedly flagrant violations of traditional norms. In his view, all of the trappings of his office, including the people who work for him, are perks he gets to use as needed to advance his partisan or personal goals.

That’s the dynamic Barrett walked into last night by agreeing to do a White House swearing-in. A president who very publicly expects “loyalty” from people who owe their jobs to him, including administrators of justice like Wray and Sessions and Bill Barr, who’s spent every day for months trying to convince the public that if he loses next week it can only have been due to fraud, who’s been telling the media that he needs Barrett on the Court as a swing vote to decide who gets to be president next year, wanted to show her off to his base as his insurance policy against Democratic “cheating.” And she went along. He even posted a quasi-campaign ad of the moment:

It’s the White House logo, not the Trump campaign logo, that appears at the end. But as I’ve just reminded you, Trump sees no distinction between the two.

The obvious reply here is, “Just because Barrett participated in his pageant doesn’t mean that she actually *will* show loyalty by taking his side in an election dispute with Biden. She’s independent now, free to vote as she wishes.” That’s true, but the optics will add to the political and civic pain if she concludes that Trump really does have the better case on the merits and ends up taking his side. Democrats will weaponize this footage to “prove” that Barrett has been in the tank all along. Public confidence in the Court will be shaken irrespective of what happened last night but the video will drive it home in a gut way that mere partisan rhetoric couldn’t: Look at those two collaborators having a lovefest at the White House eight days out from the vote. He demanded loyalty, he told the world what he wanted her to do, and she did it. Public perceptions of her will never be the same — which is grossly unfair to her, but that’s what happens when the president treats it as a selling point that he thinks you’ll be a partisan hack in an election case if one comes before you. No one in America wants a clear result on Tuesday one way or another more than Amy Coney Barrett does.

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