It’s Her Choice: Amy Coney Barrett Can Refuse SCOTUS Confirmation

“Along with scores of my colleagues, I signed a letter outlining objections to Amy Coney Barrett’s nomination. But I am going further here and asking Barrett to take the risk of refusing final confirmation now.

“In this brief moment of raw, delicious power, the choice of which way things go is really up to Barrett and Barrett alone.”

It's Her Choice: Amy Coney Barrett Can Refuse SCOTUS Confirmation
President Trump announces Judge Amy Coney Barrett as his nominee for the Supreme Court on Sept. 26. (The White House / Flickr)

As one of Amy Coney Barrett’s University of Notre Dame faculty colleagues, I congratulate her on her nomination to the Supreme Court. Though we never crossed paths on campus, I acknowledge her stellar work—but am troubled by the circumstances of her meritorious rise.

Until just this past summer, I was the only Black female tenured associate professor at Notre Dame for more than 20 years. Though the reasons for that are a result of systemic racism stretching far beyond the university, I know that as both its victim and an avid researcher of its manifestations and effects in literature and culture, I am especially attuned to the plague of injustice.

As an institution, a crucial part of Notre Dame’s mission is the advancement of social justice. Faculty, administrators and students are called upon to uphold the values that are consonant with this idea, the high causes of fairness, equality, love for one’s fellow human being, and in that light, charity. Barrett’s commitment to Notre Dame is fortified by a separate commitment to the law, which also seeks to uphold these values. 

Along with scores of my colleagues, in the interests of justice, I signed a letter outlining objections to her nomination. But I am going further here and asking Barrett to take the risk of refusing final confirmation now.

Four years ago, Merrick Garland was in place to be nominated to the Supreme Court by President Barrack Obama, several months before the 2016 presidential election, but the Senate would not even hear his case.

Now just weeks before the 2020 election, Barrett’s nomination is rushed; the Senate, with its majority, is within its rights to hold confirmation hearings. But though it has the right, this does not make it right.

As a Black woman, given the U.S.’s dismal civil rights history as well as contemporary problems with police brutality, I question reliance on the law as a certainty of justice. Two hundred and thirty-three years ago, it was agreed among lawmakers that due to the color of my skin, I should be considered only three-fifths of a human being. Was that justice?

Just 53 years ago, my legal marriage to my French husband would have been against the law, considered as “miscegenation.” Was that justice? 

Until the Voting Rights Act of 1965, Black voters were routinely terrorized and even killed to prevent them from exercising their legal right to vote. But a 2013 Supreme Court ruling on the Act has effectively returned the U.S. to the 19th century and the failed Reconstruction on this score, by removing the need for federal approval in the jurisdiction over election laws in nine Southern states. Was that justice?

It's Her Choice: Amy Coney Barrett Can Refuse SCOTUS Confirmation
The 2013 Supreme Court decision in Shelby County v. Holder freed nine states, mostly in the South, to change their election laws without advance federal approval. (cool revolution / Flickr)

The Supreme Court is the Court of last resort for those who seek justice. Because of this, it must be pristine, residing far above the fray. It cannot be sullied in any way, or else the delicate gauze of its transcendence will be ripped away, leaving only the muddy tussle of politics and power behind. It cannot be, as Lindsay Graham recently described it, simply a case of the majority wins, without irreparably damaging the Court.

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A tarnished Supreme Court is a terrible loss to the American people. When there is no true justice, there can be no equality, and a law without justice is nothing. Far worse, a Supreme Court without justice loses its reason for being.

The fight for true justice was the lifelong legacy of the late Ruth Bader Ginsburg, who selflessly, even though gravely ill, gave all she had to ensure that everyone of all genders, colors and walks of life should be treated equally and fairly under the law.  She exemplified not only the love of positive law—the law created by humans—but natural law, that of morality, personal integrity and faith.

It's Her Choice: Amy Coney Barrett Can Refuse SCOTUS Confirmation
Vigil outside the Supreme Court for Ruth Bader Ginsburg on Sept. 19. (Victoria Pickering / Flickr)

As Americans, we have been struggling to eradicate the divide between these two instances of the law from the very inception of our nation. We must not just profess to love democracy—we must actually live it. And we have not succeeded, to this day.

When will that day come, when we can say we are not only the inhabitants of John Winthrop’s city on a hill, but worthy of such an honor?

Barret stands at a critical historical juncture, in the crevice between the law of the land and the law of morality. In this brief moment of raw, delicious power, the choice of which way things go is really up to Barrett and Barrett alone.

And there is only one question, really, to be asked of the nominee: Is it because you can become a Supreme Court justice—see it bright on the horizon, close enough even to grasp, see yourself in the coveted chair—that you should become one? 

One choice is to respect the dying wish of Justice Ginsburg, to fill her vacant seat after the election, not all in a rush before. That choice would link Barrett to a legacy not just of self-sacrifice, but of an incandescent power of having helped turn the country completely around at a dire moment of trouble, having helped to recreate trust and faith in our political institutions.

The other is to continue the path to her Supreme Court appointment.

My hope is that Barrett will choose what is right, by refusing confirmation, if only for love for the Court’s high calling. This would return many cherished beliefs, not just to her colleagues and fellow Americans, but to the world. 

Take Action

If you agree with the 74 percent of Americans who believe the Senate should be prioritizing COVID-19 relief, instead of pushing through a lifetime appointment to the Supreme Court, call your senators at (202) 224-3121 or send them an email. 

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Cyraina Johnson-Roullier is an associate professor of English at the University of Notre Dame, author and essayist. She is at work on a monograph, DEMOdernity: Atlantic Moderns, Americanness, and (Re)Imagining the Human through Law & Utopia and a memoir, Hands: A Touch of Cancer.