Amy Coney Barrett and the end of procedural restraint

The second day of Supreme Court nominee Amy Coney Barrett's confirmation hearings was a drumming reminder of how thoroughly our government has embraced brazen power politicking. "The strong do what they can and the weak suffer what they must," as says the famous line from the ancient Greek historian Thucydides. Unwritten traditions are increasingly unreliable to constrain official behavior.

This realpolitik was never absent, of course, and it would take incredible naivete to imagine as much. But there is a real escalation here, and it's particularly evident in the struggle for control of the Supreme Court. Gone are niceties of convention, the "loyal opposition," and any sort of victor's magnanimity — or, at least, any public performance of a more genteel game of governance. Open procedural extremism, doing everything permissible per the letter of the law, is how the sport is played.

The present skirmish began with the 2016 death of Justice Antonin Scalia, whose seat Senate Majority Leader Mitch McConnell (R-Ky.) refused to fill until after President Trump replaced former President Barack Obama. As Barrett herself said on CBS at the time, "the president has the power to nominate, and the Senate has the power to act or not, and I don't think either one of them can claim that there's a rule governing one way or the other."

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There isn't a rule — not a legally binding one, and nonbinding rules are irrelevant to procedural extremists. Whatever you can get away with, that's what you do. The "McConnell Rule" of not confirming new justices during election years was transparently a trick play, a lie to which even McConnell himself could not always be bothered to commit: "I knew for sure that if the shoe were on the other foot, [Senate Democrats] wouldn't fill a nominee by a Republican president in the middle of a presidential election year," he said on a podcast in June of 2016 after repeatedly insisting he just wanted to let the American people vote before the seat was filled.

McConnell's cynical estimation was undoubtedly correct — if not yet then, certainly now. Democratic enthusiasm for killing the Senate filibuster and packing the Supreme Court next time they're in power is rising. Democratic nominee Joe Biden, a former senator known for his institutionalism, likely doesn't prefer this strategy, but neither will he rule it out. In the same breath as he pleads for a timeout, he threatens to join the scrum. His support for the filibuster is "going to depend on how obstreperous [Senate Republicans] become," Biden said in July, and though he's "not a fan of court-packing," it's a strategy he clearly wants to keep available.

That brings us to Barrett's Tuesday hearing, in which Democratic senators issued demand after demand that the nominee explain how she'd rule should certain controversial cases arrive at her desk: Would you overturn Roe v. Wade (1973)? Would you throw out the Affordable Care Act? Would you make gay marriage illegal again? And would you recuse yourself if your nominator, Trump, were involved in an electoral despite like Bush v. Gore? (Barrett refused to answer such hypotheticals, as is common practice for SCOTUS nominees abiding by the Ginsburg Rule: "no hints, no forecasts, no previews" about unsettled legal questions.)

These questions would come up in any SCOTUS confirmation hearing. But, as Sen. Dick Durbin (D-Ill.) observed, not every SCOTUS nomination has been prefaced by a president's frequent boasts of how his nominees will help him achieve his party's political goals. "You've said very clearly today, without equivocation, you're not going to be influenced by President Trump's importuning or the importuning of this committee or anyone else, which is what we expect you to say," Durbin told Barrett. "But this notion that this whole idea of your being used for political purposes is a Democratic creation — read the tweets!"

He's not wrong. The tweets (and Trump's comments more generally) are a significant departure from how past presidents talked about their Supreme Court nominees. Former President George W. Bush emphasized things like temperament, experience, "sound legal judgment," and refusal to "legislate from the bench" or "impose [one's] preferences or priorities on the people" in his nomination announcements. Obama did too. They'd talk judicial philosophy and even connect it to particular policy outcomes, but there was nothing like Trump's steady stream of tweets listing his nominations as one more partisan win and a guarantee of his agenda's longevity — not to mention his announcement that he needs another nomination confirmed by Election Day so there won't be a 4-4 tie if the vote results are contested.

Nothing here — McConnell's stonewalling, the Democratic push to end the filibuster and pack the court, and Trump's incessant politicization of his SCOTUS choices — is illegal. It may be dishonest, unfair, outrageous, shortsighted, or debasing, but it's all within procedural bounds. The only way to curb this style of political play is to change those bounds, which means new legal, not conventional, constraints on our elected officials' behavior.

Unfortunately, those very officials would have to enact those constraints, and whichever party is in power never will. For why limit themselves? The strong do what they can.