Judge Amy Coney Barrett sent a few shockwaves through her otherwise fairly predictable confirmation process on Tuesday and Wednesday by declining to answer a series of easy questions about democracy and the rule of law. When Sen. Dianne Feinstein asked whether there was a mechanism by which a president could unilaterally delay a federal election, she declined to respond, likening doing so to “punditry.” Asked later by Sen. Amy Klobuchar whether having self-appointed poll watchers harassing and intimidating voters as they tried to vote was illegal, she demurred, suggesting it was a hypothetical question on which she might have to rule. On Wednesday, when Klobuchar asked whether anxious voters trying to decide whether to vote in person or by mail could rely on the proposition that “absentee ballots, better known as mail-in ballots, are an essential way for voters to vote right now?” Barrett replied that this was “a matter of policy that I can’t express a view.”
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Asked Tuesday by Sen. Cory Booker whether a president should accede to a peaceful transfer of power should he lose an election, Barrett said she could not offer an advisory opinion on this because it may become an issue in the election: “To the extent that this is a political controversy right now, as a judge I want to stay out of it, and I don’t want to express a view.” Asked further whether a president could pardon himself, she said she also felt it unwise to answer. On Wednesday, she told Booker that she could not weigh in on whether it was appropriate to separate children from their parents for purposes of immigration deterrence.
The answer to the questions above are straightforward and obvious. Similarly, the answers to questions like “Can the president order the extrajudicial assassination of suspected antifa activists?”, “Can Bill Barr indict Hillary Clinton, Joe Biden, Jim Comey, or Hunter Biden simply because Donald Trump demands it?”, and “Are all mail-in ballots per se fraudulent?” are obvious as well. Now, Barrett is a demonstrably sane, intelligent person; she knows these answers, as they are all Law 101–level questions. But she couldn’t give them. Her stated reason for not answering them is that they may come to her if she is seated on the bench. But the real reason she can’t answer is because doing so would put her at odds with the president who nominated her, and getting crossways with that guy is a career-killer.
Being tied to Donald Trump and his lawless worldview is clearly uncomfortable for Barrett. It’s why, unlike Brett Kavanaugh, she didn’t treat the president to a tongue-bathing in her Rose Garden announcement ceremony; it’s also why she continues to insist that while the president has promised that she will hand him the election, gut the Affordable Care Act, and strike down Roe, she has in fact made no such pledges to him. She very obviously wants to distance herself from the president by saying she owes him nothing, because the president has evinced nothing but contempt for the courts, the rule of law, for women and people of color. But she can’t say any of that. And so she has swathed herself in a cloak of neutrality and asked, repeatedly, that we take her word for it that her integrity alone will protect us. The tactic has largely worked for her, until she found herself refusing to answer a question as basic as “Should the president accede to a peaceful transfer of power?” or “Are absentee ballots important to democracy?” That’s when her wide-open mind doesn’t disserve just her, but democracy itself.
Barrett’s Trump problem is a familiar one for the Trump-adjacent community. Her proclaimed neutrality means that as the president continues to claim that the election will be fraudulent, that he will not concede defeat, that he will use the instrumentalities of the Justice Department and law enforcement to suppress the vote, her personal plan is simply to approach all those claims with an open mind. Like the dozens of ostensibly honorable Trump enablers who came before her, from Jim Mattis to Rex Tillerson to John Kelly to Kirstjen Nielsen, each of whom dutifully pretended there were two sides to every issue and good people on both sides of every lawless Trumpist claim, their after-the-fact distancing does nothing to erase the enabling. Their neutrality can seem banal—what’s more evenhanded than refusing to weigh in? Maybe putting children in freezing cages really is semi-lawful? But all this moral equivocation has led us to the place in which casual claims about shooting protesters with rubber bullets, assaulting members of the press, and kidnapping and trying a sitting governor are received as other cool constitutional ideas to be entertained with an open mind. The president’s Overton window has been leaking noxious tyrannical ideas for four years now. The refusal to publicly and definitely quash them under the guise of neutrality isn’t actually a neutral act.
I understand why Barrett needs to pretend that Trump is a normal president, that Merrick Garland deserved the treatment he received at the hands of the GOP, that Myra Selby—whose seat she inherited on the 7th Circuit after a yearlong blockade at the hands of the GOP—also deserved what was done to her. This administration teems with good people who choke back criticisms of despicable behavior. I also understand that the best thing to do in the presence of Donald J. Trump is to lavish praise, substitute his (bad) judgment for your own, and—if the reporting is to be credited—say nothing, even about his attacks on the courts, your colleagues, or democracy itself. The working theory seems to be that if you can just hold your tongue now, you can someday wield your power honorably. Maybe with time you can wash off the stink. After all, you’re a good, moral person, right? That is why Donald Trump is still surrounded by people who will someday tell us that they were screaming, howling, dying, on the inside, even as they were genuflecting and servicing his worst impulses.
The real problem for Barrett is that she has chosen to hold her tongue about the integrity of the election itself. But to refuse to say out loud that hiring thugs to intimidate voters is unlawful, or that the president cannot delay an election or remain in power despite electoral defeat, isn’t a neutral act. It is aiding and abetting an electoral crime that is already in progress. Having an “open mind” about unconstitutional and illegal claims isn’t unbiased. A refusal to say what the law is—once a proud judicial function—in fact legitimizes those claims in the public eye. For nervous voters who are trying to make intolerable decisions right now, today, about the risks of voting by mail versus standing in line as their regional COVID numbers spike, this is not a law school exam or some legal thought experiment. Barrett’s refusal to affirm that the correct answer is yes, absentee ballots are essential to a functioning democracy; yes, your vote will be counted; no, the president cannot nullify the vote; and yes, if the president loses the election, he will leave office isn’t unbiased umpiring. It transforms her from a careful judge into a getaway driver, no different than Bill Barr, who is also using his office and platform to lie about voting and elections law. And every single person who refuses to acknowledge that elections are governed by immutable laws becomes part of a project—even if they do so unwillingly—to pollute the public discourse and to undermine confidence in both voting and the election itself.
Stupid and unsupported legal claims don’t have good people on both sides, just as some Nazi marches don’t have good people on both sides. As Tim Snyder argued last week, a vote for Donald Trump is also not a morally neutral act:
To vote for Trump is to traduce the meaning of voting, which is a normal part of the transition to authoritarianism. Because the collective effect of votes for Trump is to create background plausibility for a coup, each vote for Trump is participation in a plot to end the American republic. It is to vote for a future in which voting does not matter. It is a choice by Americans to no longer make choices as Americans. It transforms individuals with interests and values into elements of a spectacle that legitimates an authoritarian regime change. If Trump stays in power, elections will continue to take place, but they will be meaningless. Soon we will not bother to speak of fraud, because voting will be a joke.
That is what Barrett’s self-professed open-mindedness on Trump’s effort to steal the election leads to: It is actually an affirmative choice to mislead voters and to debase and devalue voting itself; it legitimates and furthers a deliberate plot to suppress the vote, and to message that some votes just may not be counted and that voting in general is a crapshoot. I don’t believe for a moment that Barrett is willingly enabling Trump’s lies about his constitutional authority, his lawless claims about his unbridled powers, and his dangerous attempt to foment mistrust and violence around mail-in ballots and the election. But it’s sad that because she is unwilling to sacrifice her chance at this very important job, she can’t clarify that elections are bound by fixed laws, now, when people are worried, and listening, and looking for legal authorities to weigh in. What she might not realize in this moment is that in failing to publicly reject those claims—especially as someone with lifetime job security to say whatever she wants without consequences—she is also abetting those claims.
For four years we’ve watched honorable people insist—as Barrett does—that they are not Trump’s “pawns,” even as they carry water for his most diabolical impulses by refusing to disavow them. It isn’t that hard to say that presidents can’t delay elections, or terrorize voters, or toss out absentee ballots, or refuse to leave office. The failure to say those words doesn’t just open the window for those ideas to flourish; it also makes them likelier to take hold. It’s an allegedly “neutral” posture that will do a lot of pernicious work to undercut the very democratic ideals she is sworn to uphold.
