Letters from Rome: Let Us End the Partisanship

**for the reader: this article was originally published on October 26th, 2020.

To my friends at Our Divide,

This letter, I hope, will be the first of many. It is quite lengthy, but with the new restrictions imposed by the Italian government, I am often finding myself with much to think about, and little else to do other than to think about it. I duly note, in advance, and for the second time, that this will not be a short letter. But if you, like me, have an interest in thinking, and have time to think, and if you could do a favor to a friend, it would bring me much joy to know that you have read the letter, and even more to one day come across a response. I must confess that I am missing, and not by a small degree, the dinner table conversations about politics, or the news, that I used to have with my grandfather and my cousin in Fairfield, before coming back to Rome. So, if you could bear with me for a little while, or a long while, I’ll talk about politics and the news with you, instead. What follows will be an inquiry and reflection on the nomination and appointment of Judge Amy Coney Barrett to the Supreme Court of the United States. Let us begin.

The propositions against proceeding with the process of Judge Barrett’s appointment to the Supreme Court stem from four principal arguments: that President Donald Trump has moved too quickly to nominate Barrett and seek the Senate’s advice and consent; that we are in an election year; that Republican senators blocked Judge Garland’s appointment in 2016, and that confirming Judge Amy Coney Barrett to the Supreme Court would sanction the disruption of years’ worth of progress. The following pages of this letter will be an effort to respond to these arguments. It is sincerely my hope that this analysis, in respectful terms, might live up to the evidently superior standards of the most wise, expert and competent leaders of the Republican and Democratic parties— whom, I am well aware, will, in all probability, never come across it.

It has been said that the current President of the United States has nominated Judge Amy Coney Barrett to the Supreme Court too quickly. Two reasons can render the argument valid. The first regards the nomination itself, while the second has in scope the entire process of appointment. The former reason being that President Trump has not adequately considered Barrett’s qualifications, and the latter that there is no historical precedent for moving with celerity from nomination to confirmation. But, before continuing, here are the facts: Justice Ginsburg died on September 18th and, on September 26th, eight days later, President Trump nominated Judge Barrett, of the U.S. Court of Appeals for the Seventh Circuit, to succeed her.

President Trump is “bound to submit the propriety of his choice to the discussion and determination of a different and independent body; and that body an entire branch of the legislature.”(i) In response to the proposition that the current President has not sufficiently investigated the qualifications of his nomination, I say that it is precisely the duty of the Senate to enquire and judge whether he has. This response, though, does not address the issue in its entirety— it merely asserts someone else is doing just that. We can dismiss the issue, and declare the proposition unfounded, by delving into the facts of the matter. It is true that the President nominated Judge Barrett but eight days after Justice Ginsburg’s death. And, in such a situation, the President presenting a nomination, in eight days, to a person whose integrity, skill, and knowledge are by him not judged to be the ones necessary, would raise more than reasonable objections and concerns. But not only are the qualities and qualifications of the nominee— a renowned and universally respected scholar and Judge of the U.S. Court of Appeals—well known to the people at large, they have been long-esteemed of President Trump. Judge Amy Coney Barrett has been the first name on the President’s Supreme Court list since 2017[1]. To declare that the President— having been adamant about his nominee’s qualifications for more than two years— has not demonstrated his belief that Judge Barrett’s abilities and integrity meet the ones necessary for the station, is to place oneself precisely as far from the truth as falsehood.

Let us now enquire on the proposition that there is no historical precedent for moving with speed from nomination to confirmation. It cannot go unmentioned, as this alone may deprive the argument being posed of all weight, that the Constitution gives no provision, guideline, nor does it dictate any standards regarding the amount of time that must pass between a candidate’s nomination and the beginning of his confirmation processes. Nevertheless, even with the Constitution’s grant of leeway on the matter, should a well-established historical precedent exist, then drastic discordance with it might call for objection and might be cause of concern. But not only is there no precedent against celerity in such instances— there is one for it. It has been valid, repeated practice, from the time of President Washington to that of President Ford[2], for the Senate, once a nominee has been presented, to proceed with speed toward confirmation voting. The Senate Judiciary Committee held Barrett’s first hearing on October 12th, sixteen days after her nomination. The list of cases in which the time that elapsed between a candidate’s nomination and the beginning of his confirmation process has been shorter that sixteen days is numerous[3]. Yet the existence of a precedent for celerity— though in itself it disqualifies the argument proposing its contrary— is still less complete a response to such an argument than one which explores the reasons for its existence. A Supreme Court session has already begun. Between Judge Barrett’s nomination and Election Day, the Court will have heard the oral arguments of four cases[4]. It is of most importance that the President and Senate discharge their duties with all possible expedition. For, though the Supreme Court now can operate, as only one seat is vacant, it is evident and self-explanatory that a full complement is vital to the functioning, and contributes more to the productivity of any body than does a quorum designed to act in extraordinary circumstances.

Having demonstrated that the President has not presented his nomination and sought the Senate’s advice and consent too quickly, let us now move to analyze the second of the four arguments against proceeding with the process of Judge Barrett’s appointment to the Supreme Court: that we are in an election year. The argument’s nature is twofold— its first line of defense being that the appointment of a Supreme Court Justice affects the lives of the American people and, thus, that the people themselves deserve a say in deciding who the appointed officer will be. Should this line fail, though, the proposition that we are too far into an election year will be the argument’s last defense.

That the American people ought to have a say in the modes of operation of their systems of government is consonant with the nature of democracy, and it is equally consonant with the truth that, as guardians and protectors of their Constitution, Justices of the Supreme Court affect the lives of the American people. But if the framers of our Constitution believed that the filling of the offices of the Supreme Court ought to be at the whim of shifting political winds, then the people themselves would be electing Justices of the Supreme Court; nor is it because of a distrust in the people’s abilities that the framers designed the system of appointment of Justices in such a way, but because of a regard and commitment to the well being and flourishing of the nation. “The exercise of it [the power of appointment] by the people at large, will be readily admitted to be impracticable; as, waving every other consideration it would leave them little time to do anything else.”(ii).

The election of the President and the Senate is the means through which the people have their voice heard. They have chosen the current President and Senate, entrusting them with their duties for terms respectively of four years- The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years (iii)- and six years- The Senate of the United States shall be composed of two Senators from each State, for six Years (iv). Now, having made clear that it is the duty of the President and the Senate to nominate and appoint Justices of the Supreme Court, and that it has been the people’s say which has charged them with this duty, let us consider the argument that, if such duty is to affect the lives of the people, the President and the Senate ought not to fulfill it.

The President’s discharge of any and all of his duties will be such as to affect the lives of the American people. To say, then, that during an election year, the President ought not to fulfill those duties whose discharge will affect the people, is to say that he ought to fulfill none of his duties and, thus, that in the fourth year of his presidency he ought to have no duties at all. “Why, then, have a President hold his office for four years, if in truth he is to be President for three years only? Let us change the terms of his presidency, such that he shall hold his office during a term of three years. But if this third and final year is to be the election year, he ought to hold no duties during it. Why, then, have a President hold his office during a term of three years, if in truth he is to be President for two years only? Let us change the terms of his presidency, such that he shall hold his office during a term of two years. But if this second and final year is to be the election…”— no less is the madness we are countering. To support the argument is to will the deletion of the offices of the Presidency, of the Senate, and of government itself. And any officer of the union, or their political parties, who, making use of the times’ confusion , and acting under the guise of the people’s best interest, knowingly and willingly opposes the Constitution and the laws of the country for personal interest, is to be called out for his treason to the American people. Being in an election year— however far into it that may be— is neither a valid reason, nor an acceptable justification, for the Senate and the President not to fulfill their respective duties. The reality of the current situation is that the people have chosen their President and Senate, and the respective terms of both offices have not expired. The country will have occasion to express its say in the matter again, soon. And indeed many of the American people have already, because of the undergoing pandemic, cast their vote, but such vote is to decide who shall be the President of the United States after the current presidential term has expired: both those who have already expressed their say through vote, and those who have not, made a decision three and a half years ago, and they must abide by it.

The following and third argument is the most justifiable. For as a splinter may root itself deep within one’s body, and resurface to infection long after its entry, so has a wound untended caused a canker to fester in the American nation. The argument that Judge Barrett ought not to be given the chance of confirmation because the Senate, four years ago, denied Judge Garland that same chance is one that sprouts from justifiable anger. The Republican Party held the Senate majority then, as it holds it now, and it is most understandable to deem republican Senators who successfully opposed Judge Merrick Garland’s confirmation voting four years ago as unworthy of the trust of the American people. But the argument that because a duty was not fulfilled four years ago, one must not be fulfilled today, is one that cannot be allowed to carry any weight. For what is more testament to a nation’s failure than its response to evil with evil, and to disorder with disorder? And what is greater testament to its quality than its ability to counter wrong with composure?

Republican Senators who blocked Judge Garland’s confirmation vote four years ago may think that under the guise of authority they have shown the world how grandly and with what resolution they can exercise their raw power, but all they have shown is the ease and the happiness with which they gratuitously prostituted such power, and, with it, the trust of the American people, for political expediency. They have forfeited the moral high ground, and any attempt to claim it now is testament either of their inability to follow reason, or of their low esteem of the American people, by which they hold them incapable of doing so. That the Senate’s duty of advice and consent has fallen second to party interest is unfortunate, but two wrongs do not make a right, nor does the same wrong repeated twice. Members of the Senate not discharging their duties in the past is no justification for the Senate not to discharge its duty today, and though the anger of the nation is natural, to abandon the Constitution is neither the right response, nor an acceptable solution, to the current situation. And attempts of the Democratic Party to undermine the Constitution for no other reason than interest and vengeance, and to call for a neglect of duty in response to that very same, is as indicative of its regard for the nation’s fundamental law and wellbeing as are the actions of the republican Senators whose breach of the people’s trust is causing harm today.

Finally, the next, is an argument that casts a great shadow of fear, and from which shadow, as evil feeds on evil, comes all of its force. It is true, that such a vast shadow comes from a great argument, but the size of this last is not indicative of its real weight, for as a balloon may be very large, yet, when pierced, will be found to be but air, and will empty into a crumbled semblance, so will the argument, that the appointment of Judge Barrett to the Supreme Court of the United States will sanction the reversal and disruption of the progress made in recent years, be found to be unsound and rooted in fear, not reality. Let us then move to inquire upon the subject.

To have convictions and to hold beliefs is truly part of personhood, and that one’s beliefs and convictions shape one’s morals is equally true. And all statesmen ought to be men of morality; but this must be especially true in the case of men and women whose actions can, and will, alter the lives of entire peoples. Yet, the duties of a Justice of the Supreme Court of the United States oblige him to judge whether or not laws conform with the Constitution, not whether they conform with his personal beliefs, convictions or morals. And Justices swear on the Holy Book, with God and the American people as their witnesses, to uphold and defend the Constitution, and to faithfully discharge the duties of the office, without any mental reservation or purpose of evasion[5]. Now, the President has deemed Judge Barrett’s skill, knowledge, aptitude and integrity to be the ones necessary for the station. But suggesting that, should she swear it, she will not abide by her oath, is a direct attack to her integrity. Judge Barrett has repeatedly assured the President, the Senate, and the people themselves, and always with composure, even when confronted with unreasonable questions of utter disrespect to her person and to her family, that she will, to the best of her abilities, abide by her oath. Still, the word may move, but it does not prove. There must be concrete evidence of the nominee’s integrity. But it is undeniably true, in the case of Judge Amy Coney Barrett, that her work, reputation and record are testament to her thus far unfaltering integrity: her proven skill, well-respected record, esteemed reputation, and past integrity ought to be reason enough to trust that she presently possesses the integrity necessary to take the oath of office and fill the station of Justice of the Supreme Court of the United States.

One argument might still be proposed: that even though the nominee is fit for the station, her appointment would render the Court unbalanced in favor of the Republican Party. This, more than the previous, which attacked Judge Barrett’s integrity, is the argument at the base of the proposition that the appointment of Judge Amy Coney Barrett to the Supreme Court of the United States would sanction the disruption of years of progress in women’s rights, homosexual marriage, and healthcare. Let us analyze it, and respond to it.

The party affiliation of the President does not oblige his nominee—and it ought not to— to rule, when and if appointed, in favor of any party or individual. For there is no such thing as a “Republican Justice” or a “Democratic Justice”. There are only Justices, and they swear to discharge their duties and defend the Constitution without any mental reservation or purpose of evasion. The nominee has promised and assured that she has no intention of breaking her oath, and every intention to abide by it to the best of her abilities. And any man, who knows of another’s honesty and integrity, and yet will not trust him because of too paralyzing an unfounded fear of personal repercussion, should not be deciding who is afforded the privilege and great duty of filling the station of Justice of the Supreme Court of the United States. To even state the argument is to refute it: “The nominee’s integrity is not in question, but she cannot be trusted because her integrity is in question”.

Sense, though, is not the only proof of the lack of base of the argument that, because a Republican or Democratic President has presented a nomination to fill the station of Justice, then, if appointed, the nominee will favor that party to which the President who appointed him belonged. Six of the nine Justices (v), in fact, who sat on the very Court which decided Roe vs. Wade in 1973, had been appointed by Republican Presidents, all of whom had openly opposed abortion. The fact of the matter is that no Court comprised of nine Justices— if the nation operates with a two party political system, and if the standard of balance is to be the party affiliation of the President who nominated each of the nine Justices— will ever be “balanced”. For there is no way through which to divide an odd number into two equal and whole numbers. Thus arithmetic, reason, the Constitution and history teach us that the fitness of a nominee to fill the office of Justice of the Supreme Court of the United States ought never to be judged based on the political party to which the nominator, or the nominee himself belong; nor are the actions and decisions of a nominee, when appointed, dictated by those same.

Having now inquired upon, analyzed, and responded to the four principal arguments opposing the continuation of Judge Amy Coney Barrett’s process of appointment to the United States’ Supreme Court, we are come to the most bitter part of the letter. The Democratic Party’s fear mongering, and the Republican Party’s denial of its own wrongdoings must come to an end. When two sides— or parties— in the wrong, avail themselves of the other’s evils to claim righteousness, unity and the truth are lost. And that the nomination of a Supreme Court Justice has been cause of such strife and tension, and has only polarized the country, is proof that the American people are divided. But the partisanship must end. One-hundred and sixty years ago, our fathers fought to keep the Union. The fight we have decided to enter today is of no different nature. This great country will never stand up, or heal, until it realizes that it is laying on the ground, wounded and bleeding.

I am sixteen years old, many of you are my age, some are younger, and I do not remember a time when “things were better”. But often total lack, more than memory, moves one to action. And I have been taught by my father, and my grandfather, and I share in their belief, and in what I know to be your belief, too, that as long as there are Americans there is hope for America. And I might be sounding naïve in my high hopes, but, if the host of The Apprentice can become the President of the United States, hell, a kid can dream.

In hope and friendship,

Joe Altieri

For reference:

(i) Hamilton, The Federalist Papers, number 76.

(ii) Hamilton, The Federalist Papers, number 76.

(iii) U.S. Constitution, Article 2, section 1, clause 1

(iv) U.S. Constitution, Article 1, section 3, clause 1

(v) Roe vs. Wade Supreme Court Justices nominated by Republican Presidents: Chief Justice, Warren E. Burger (Nixon); Associate Justice, Harry Blackman (Nixon); Associate Justice, Lewis F. Powell Jr. (Nixon); Associate Justice, William Rehnquist (Nixon); Associate Justice, William J. Associate Justice Brennan Jr. (Eisenhower); Associate Justice, Potter Stewart (Eisenhower)