It wouldn’t have been that hard to do the right thing. All you had to do was respectfully decline President Donald Trump’s invitation to be a prop in his reelection campaign. Here’s what you could have said:
“Mr. President, I am honored by your invitation to conduct a public swearing-in on the South Lawn of the White House. However, because of my new role as Supreme Court Justice, I must respectfully decline.”
“Given the partisan nature of my confirmation hearings, it would give the appearance of bias for me to participate in a public ceremony of this type. As I will, as early as this week, be adjudicating cases relating to the presidential election, it would be inappropriate for me to participate in a political event with you. Doing so would call into question my objectivity and independence from you.”
“Moreover, given that the past week was the worst week of pandemic cases in four months, with a 40 percent increase in reported cases over the previous week, I cannot in good conscience participate in a large, public event, even one that is outdoors and with some social distancing. Even if no one becomes sick, it sends the wrong message at a time when millions of American children have not visited their grandparents in months.”
“Lastly, since the White House lawn has lately been the scene of several political events related to your re-election campaign, it would be unseemly of me to participate in this type of staged event now. Indeed, some have argued that these events violate the Hatch Act, and it is conceivable that I will be called upon to decide such a case as well. For me to participate in an event that could be construed as political in nature, and thus in violation of federal law, compromises my integrity as a jurist at precisely the moment when I am sworn into office.”
Fantasy, I know. But is it really so much to ask?
After all, the ceremony was just that—ceremony. Five current justices didn’t take oaths on the White House lawn. It’s optional. And while it takes a certain amount of chutzpah to decline an invitation from the president, isn’t chutzpah—strength of will, daring, and independence—what’s needed right now?
You said so yourself, Justice.
“A judge declares independence not only from the Congress and the president but also from the private beliefs that might otherwise move her,” you said. “The oath I have solemnly taken tonight means at its core that I will do my job without any fear or favor and that I will do so independently of both the political branches and of my own preferences.”
Those were good words—even profound words.
But how seriously can we take them when you’ve just allowed yourself to be used as a political prop?
I assume that, as I write these words at my home office in New York, you’re taking your second “judicial oath” in the Supreme Court building, as press reports indicated you would. I assume that, as soon as you’re finished, you’ll get right to work.
Which means that on your desk, right now, is an emergency appeal from the Republican Party of Pennsylvania. They want the Supreme Court to hear a case, in the next few days, about the deadline for receiving mail-in ballots in Pennsylvania.
Last week, the Court deadlocked 4-4, and thus left in place a judge’s order extending that deadline. Per the order, ballots received by next Thursday will be deemed valid unless they have a late postmark.
The state Republican Party now wants the Court to somehow try the entire case in five days. You should recuse yourself from that decision. Although you declared your independence from politics last night, you undermined that very declaration by participating in a pomp-and-circumstance event that was widely regarded—by people across the political spectrum—as the Republican party’s victory lap.
Recusal would send an especially powerful message because one of your colleagues, Justice Brett Kavanaugh, has taken an extreme partisan position in a similar case.
Just as you were being confirmed, Justice Kavanaugh published an opinion in a similar case from Wisconsin, parroting the Trump administration’s baseless talking points that mail-in ballots, even those duly postmarked on time, lead to “chaos and suspicions of impropriety.”
As I am sure you know, there is absolutely no evidence for that assertion. It is a purely political bit of rhetoric that has no place in a judicial opinion, let alone that of a sitting Supreme Court justice.
What’s more, Justice Kavanaugh’s recklessly partisan language casts doubt on the fairness of elections in the 18 states that do count mail-in ballots received after November 3. Are all of these states’ results tainted by “chaos and suspicions of impropriety”?
That is precisely the opposite message that the Supreme Court should be sending right now. Justice Kavanaugh has just undermined trust in our nation’s electoral process. You, and the rest of the Court, are in charge of ensuring its fairness.
Your time in the political maelstrom is now over. Show us, especially those of us who have strongly disagreed with your past opinions and who have reason to fear your future ones, that you are indeed above politics. Do better than you did last night.