Courts

I Really Don't Care If Your Preferred SCOTUS Nominee Is 'Nice'

This is the Supreme Court, not a cotillion.

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On the Fourth of July, author Stephen King tweeted out a saccharine call for civility, imploring progressives to go hug Trump supporters and vice versa. This prompted a deluge of responses from concerned citizens urging him to kindly shove it and go back to writing about haunted toasters. This morning, he attempted a follow-up that only underscored how pitifully out of touch he is. But that’s what happens when you spend your life in Maine. You can get so turned around up there that you might even convince yourself Susan Collins has a spine.

King’s commitment to the idea that “what divides us” amounts to a bundle of superficial disagreements that we blow out of proportion is so peak “rich white guy” that the idea itself deserves a country club membership. There aren’t a lot of existential impacts on the table when guys like King gab about taxes with their neighbors. For a teen rape victim in Alabama or a black kid enduring de facto segregation in an underfunded school, “what divides us” is, you know, pretty goddamned serious. It’s why the most recent iteration of the “Bob and Sally” meme, featuring a redline markup rejecting the Pollyanna tripe that conservative media press to gaslight their political adversaries rings so true.

Two incidents yesterday got me thinking about how this pernicious commitment to a contrived, asymmetrical sense that “nobility” demands embracing someone because they’re “nice” or “smart” is infecting the rhetoric surrounding the upcoming Supreme Court nomination.

First was Krista Cox’s interesting post outlining her positive experiences as one of Judge Barrett’s former students and the other was a Twitter thread involving our own David Lat and Daniel Rodriguez, until recently dean of Northwestern Law, gushing about Judge Amul Thapar’s candidacy. In both, we get a taste of personal history to develop a sense of these potential nominees behind their written record. It feels natural to go down this road because as human beings, we’re drawn to these human stories. There’s a reason every good reality show builds up the sympathetic contestant. I’ve even caught myself unconsciously doing the same thing — like making passing remarks about Judge Kethledge having a reputation for being “well-liked” by colleagues.

It’s time to put a stop to this. These candidates may well be nice and smart people. If you enjoy sufficient privilege that you can go grab a beer with them and overlook how they choose to deploy that intelligence and charm, go for it. But let’s put a moratorium on advancing these stories while we’re weighing a Supreme Court nomination. Because consciously or not, focusing on these stories at this juncture serves the same gaslighting that King sleepwalks into — feeding an effort to humanize potential nominees to blunt a headlong consideration of the people whose lives will be materially worsened, indeed even ended, by the whim of this handful of men and women. They’ll probably even label any criticism of such nice people as “uncivil.”[1]

But we need to stare unflinchingly into this because the stakes are too important not to.

Judge Kavanaugh has labored to suborn torture in direct contravention of Boumediene. Judge Thapar doesn’t believe in same-sex harassment and has a generous view of qualified immunity in a country where minority populations are increasingly being killed by cops who fully understand the incentives of a system that refuses to hold them accountable on principle. Judge Barrett is only in this discussion at this time because a handful of hardline conservative legal pundits want her to pen the final overrule of Roe to “own the libs.”

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According to one of his co-clerks, for Judge Kethledge “one of the highest compliments he can give about a person is they aren’t afraid to drink beer straight out of the bottle.” That is, in fairness, an admirable position and probably 90 percent of what I need to know to know that I’d like this guy. But we’re not planning a barbecue, we’re placing someone on the Court for decades to come and Kethledge has brutalized workers on everything from the right to organize to wage disputes to harassment claims. There’s no amount of personal charm that can justify carrying professional water for someone who will put ordinary folks in a vice like that.

It’s the banality of evil that Hannah Arendt wrote about so succinctly. While there’s a gulf between the subject of her work, a literal Nazi, and the candidates for this job, the condition she describes applies all the same. These people love their kids, play nice with their neighbors, and provide fascinating dinner conversation. They may be entirely normal, even delightful folks personally. That doesn’t mean they haven’t dedicated their professional lives to inflicting harm on the most vulnerable in society.

Stop trying to make it a selling point that your preferred candidate is nice… a lot of the worst damage comes from nice people.

Earlier: SCOTUS Candidate Judge Amy Coney Barrett Wasn’t My Favorite Law Professor, But She Would Be An Amazing Justice

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[1] One group has already announced a big ad buy to promote the pick’s bio. So this is already taking shape.

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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