Watching the footage now, you can almost see the virus particles swirling in the air, an ominous cloud sprinkling the Supreme Court nomination ceremony in the White House Rose Garden, as Judge Amy Coney Barrett stands behind the podium and in her Jennifer Coolidge-on-helium voice tells Donald Trump that she’s “deeply honored by the confidence you have placed in me.”
There they were, a mostly white crowd of Republicans packed together, shank to flank, hugging, kissing, handshaking, close talking, backslapping, thumbing their exposed noses at the CDC’s social distancing guidelines. The overwhelming majority of attendees declined to wear face masks, including the guest of honor, her husband, and their seven young children. At this point at least a dozen people at that event—including the president, the first lady, Stephen Miller, Senator Mike Lee, Senator Thom Tillis, Kellyanne Conway, Kayleigh McEnany, Chris Christie, Pastor Greg Laurie, and Rev. John I. Jenkins, the president of Notre Dame—have tested positive for the coronavirus, with untold cases among staff and journalists, who were unnecessarily exposed while doing their jobs. And that’s just the literal way in which Judge Barrett’s nomination ceremony was contaminated.
“Should I be confirmed, I will be mindful of who came before me,” Judge Barrett said of Justice Ruth Bader Ginsburg, whose dying wish—for absolutely none of this to happen until after November—was being desecrated by every word out of Barrett’s mouth.
Ginsburg’s body was still above ground, flags remained at half-mast, and millions of ballots were already in the mail. If last week’s scene at the Rose Garden felt like an epic troll, this week the president is literally spitting his virus-laden saliva in our faces, advising Americans not to let COVID “dominate your life” while availing himself of taxpayer-funded experimental therapies to which most citizens do not have access. Judge Barrett’s silence, her complicity, speaks volumes about her character.
But how about her judgment? It’s “quite bad,” says Laurence Tribe, a constitutional law scholar at Harvard. Over the course of the past week, Judge Barrett has demonstrated “the judgment of someone whose eagerness to please her benefactor trumps (no pun intended) her concern for the health and even survival of others.”
“I think it’s very poor judgment by so many people at the highest levels of our government,” says Caroline Fredrickson, a professor at Georgetown Law and former president of the American Constitution Society. “It’s not just puzzling, it’s outrageous and angering that people who should know better are so uncaring about the message this is sending to the American people about this illness and how to prevent it. Masks are the simplest, cheapest, and still most effective way of preventing transmission of this virus…and yet [the Republicans] have challenged it and undercut it at every turn.”
The Supreme Court depends on the impartiality of its lifetime appointees to sift through the merits of a given case and rule accordingly. Justices are supposed to have superior judgment, and that includes setting their own moral example. “Courtesy to and consideration for one’s colleagues, the legal profession, and the public are among the greatest attributes a judge can have,” Ginsburg told the Senate Judiciary Committee when she was confirmed in 1993. (She was quoting one of her friends, Justice Frank Griffin of the Supreme Court of Ireland.)
At a bare minimum Barrett demonstrates her utter lack of courtesy and consideration by needlessly exposing various people—her own family among them—to a deadly virus at a party. It’s possible Judge Barrett wasn’t worried about COVID-19 because she’s already had it, and thus may be immune, though the jury is still out on how long immunity lasts. On October 2 it was revealed for the first time that she had tested positive “in the summer,” though specifics of the time line remain unclear. Given that the summer technically ended on September 21, just five days before Judge Barrett’s nomination ceremony, it’s conceivable that she could have been emitting virus particles that day in the Rose Garden. Does she have lasting effects that could interfere with her (already questionable) judgment?
But the masklessness is really the end point of her unfitness. The fact that she accepted a nomination from a recently impeached president just weeks before an election, the results of which she may be called upon to adjudicate, should in itself have been disqualifying from the get-go. Anybody with a sense of ethics, whose job description entails upholding the Constitution, would have said thanks, but no thanks. Now, with the president laid low by the coronavirus, Judge Barrett continues to go about her business, trotting around the Capitol and meeting in person with senators who are ignoring quarantine guidelines to push through her confirmation in a naked power grab. Last Tuesday, Judge Barrett was photographed indoors, again smiling and maskless, with Senator Mike Lee, who now has the virus. Two days later she visited Senators Bill Cassidy, who had the virus in August, and Joni Ernst, whose coronavirus status was negative as of last weekend; again, they were photographed standing together without masks. If she had any sense of decency, wouldn’t Judge Barrett insist on quarantining for two weeks, given that she has been exposed multiple times? But that would mean that she couldn’t attend her own confirmation hearing, which Senate Judiciary Committee chairman Lindsey Graham is still insisting will happen on October 12.