Dear Judge Barrett,
Everyone who knows you says that you are a person of principle, conscience, and strong moral character. Having read much of your writing, I am inclined to agree with them.
I therefore urge you to reflect on the profound moral questions that your judicial nomination process raises. I believe that if you do so, you will make the painful but necessary decision to withdraw.
There are two ineluctable reasons for this conclusion: first, the likelihood that your confirmation process will cost lives; and second, the extreme dishonesty and slapdash nature of the process, which casts a shadow on the legitimacy of the Supreme Court and your own character.
Let’s begin with the sanctity of human life. With three senators already having tested positive for COVID-19, it is a near-certainty that many more congressional aides, family members, and workers will contract the disease.
Indeed, as you well know, the September 26 ceremony announcing your confirmation is now classified as a superspreader event. Twelve people at the ceremony have so far tested positive, including Notre Dame’s president, Fr. John Jenkins, who has apologized for attending it without a mask (in violation of his own policies) and is now facing calls to resign.
How many hundreds of people have those eight exposed to the coronavirus? How many of them will get sick? How many will die?
Most importantly, how many more people will be exposed to the virus if this process continues? Remote testimony and even remote voting will lessen the impact, but some Senate staff will still be required to work in person, and if recent experience is any guide, many senators will do so as well, imperiling themselves, their families, their aides, and others.
That, of course, is not your direct decision. But are you not morally complicit in the reckless behavior of these politicians? You have the power to stop this travesty before more life is lost. In fact, I would argue that you are the only person truly capable of doing so.
The political incentives for Senators Mitch McConnell and Lindsey Graham, both facing difficult re-election fights, are too strong for them to overcome. They will expose more people to a potentially lethal virus. Already, two senators who have tested positive have said they will end their quarantines early to vote (in person) for you, an immoral act that puts innocent lives at risk. How many more compromises do you think they will make? How many people will get sick?
The only person with the power to save their lives is you.
The second moral defect with your confirmation process is how it is tainting the court, and you, with illegitimacy.
I’m sure you’ve seen the New York Times editorial, made up entirely from quotations of Senate Republicans in 2016, arguing why a Supreme Court nominee should not be considered in an election year. I’m sure you appreciate the hypocrisy of McConnell, Graham, and others.
On one level, that hypocrisy is both laughable and expectable. Politicians exercise the power they have, period. They could stop Judge Garland’s nomination, so they did. They can advance yours, and so they are.
But “might makes right” is not a moral principle. I argued in 2016 that senators were violating their sworn oath to defend the constitution by refusing to fulfill their constitutional duties, on a “principle” they invented out of thin air. Yet having invoked that principle, surely they should at least live by it consistently.
What’s more, not only is this process moving forward with the speed and seriousness of a shotgun wedding, but the Senate may have to violate its own rules to force you through to confirmation.
Already, the Judiciary Committee is planning to meet on October 12, while the Senate is not even in session—a violation of logic itself, if not the Senate rules. The committee has already planned to advance your nomination to the Senate floor on October 22, rendering the process a transparent sham.
Now, given the possibility that the committee will lack a quorum, there is even talk of skipping the committee process instead, proceeding without a committee hearing for the first time since 1925.
And in case there is not a physical quorum for that Senate vote, as required by the Constitution, Leader McConnell has floated the idea of changing the Senate rules to allow for proxy voting, and even violating the Senate rules for changing the rules (another so-called “nuclear option”).
Obviously, you know all of this. But perhaps you believe that there are overriding principles at stake—you will have the power to let states ban abortion again, for example.
But is saving unborn life worth endangering the lives of countless people in the orbit of the U.S. Senate? And undermining the Supreme Court to the point where “court packing” is emerging as likely, should Democrats retake the Senate in the election?
Or perhaps your own pride is at stake. Having clerked for Judge Garland, I know that this is a once-in-a-lifetime opportunity for you, to work at the summit of the legal profession, to change the course of history. Yet would it not also be a profound historical moment for a person of conscience to relinquish such an opportunity, because the moral cost of seizing it is too high to bear?
Finally, of course, politics is always messy. And none of us are above hypocrisy. No doubt, I am motivated to write these words in part because I disagree with you on critical matters of principle, not least the legality of my own marriage and family.
But I ask you this. Is there any set of circumstances wherein a process would be so unprincipled that you could not, in good conscience, participate in it? And have we not reached that point, with these multiple violations of safety protocols, norms, rules, and basic principles of honesty?
Or do the ends justify the means? Even if that means tainting the Supreme Court—and you—with illegitimacy?
Innocent lives are at stake. It is clear that the politicians will not save them. I urge you to do what they cannot.