Amy Coney Barrett, whom President Trump has nominated to replace Ruth Bader Ginsburg on the Supreme Court, was born in 1972, so she can expect to spend several decades shaping both American law and American life. As it happens, a year before Barrett’s birth, Lewis F. Powell, Jr., then a prominent lawyer in Richmond, Virginia, and later a Supreme Court Justice himself, wrote a now famous memorandum to the United States Chamber of Commerce, arguing that businesses needed to take a more aggressive hand in shaping public policy. “The American economic system is under broad attack,” he wrote, from, specifically, the consumer, environmental, and labor movements. He added that “the campus is the single most dynamic source” of that attack. To counter it, Powell suggested that business interests should make a major financial commitment to shaping universities, so that the “bright young men” of tomorrow would hear messages of support for the free-enterprise system. A little less than a decade later, a pair of law professors named Robert Bork and Antonin Scalia signed on as the first faculty advisers to a fledgling organization for conservative law students called the Federalist Society for Law and Public Policy Studies. The efforts of the Federalist Society were lavishly funded by the business interests invoked by Powell, and it has trained a generation or two of future leaders. Not all of them have been “bright young men.” Some are women, including Barrett, and her confirmation would vindicate Powell’s plan and transform the Supreme Court.
Barrett made an appealing first impression in 2017, during her confirmation hearings to the federal bench. She and her husband are the parents of seven children. For many years, she was a popular professor at Notre Dame Law School, which she also attended and from which she graduated summa cum laude. She clerked on the Supreme Court for Justice Scalia. As a judge on the Seventh Circuit, she has been a reliable conservative voice. Even liberal peers in the academy find her personable. She will probably do well in providing the artful non-answers that are the currency of Supreme Court confirmation hearings before the Senate Judiciary Committee, just as she did in 2017.
But there should be no doubt about why Barrett has been chosen. Much of the commentary about her selection will focus on the issue of abortion, and her likely role in overturning Roe v. Wade. During the 2016 campaign, Trump repeatedly promised to appoint Justices who would vote to overrule that landmark, and with his three selections, including Neil Gorsuch and Brett Kavanaugh, he appears to have delivered. Barrett is not only a member of a conservative organization within the Catholic Church; her legal writings, and the views of some who know her, suggest that she would overturn Roe.
Still, it’s worth remembering the real priorities of Trump and Mitch McConnell, the Senate Majority Leader, in this nomination. They’re happy to accommodate the anti-abortion base of the Republican Party, but an animating passion of McConnell’s career has been the deregulation of political campaigns. The Supreme Court’s Citizens United decision brought the issue to wide public attention, but McConnell has been crusading about it for decades. He wants the money spigot kept open, so that he can protect his Senate majority and the causes for which it stands. This, too, is why the Federalist Society has been so lavishly funded over the years, and why it has expanded from a mere campus organization into a national behemoth for lawyers and students. Under Republican Presidents, Federalist Society events have come to operate as auditions for judicial appointments. The corporate interests funding the growth of the Federalist Society probably weren’t especially interested in abortion, but they were almost certainly committed to crippling the regulatory state.
Barrett is a product of this movement, and not just because she clerked for Scalia. Her writings and early rulings reflect it. Her financial-disclosure form shows that, in recent years, she has received about seven thousand dollars in honoraria from the Federalist Society and went on ten trips funded by it. But it’s not as if Barrett was bought; she was already sold. The judge has described herself as a “textualist” and an “originalist”—the same words of legal jargon that were associated with Scalia. (She believes in relying on the specific meaning of the words in statutes, not on legislators’ intent. She interprets the Constitution according to her belief in what the words meant when the document was ratified, not what the words mean now.) But these words are abstractions. In the real world, they operate as an agenda to crush labor unions, curtail environmental regulation, constrain the voting rights of minorities, limit government support for health care, and free the wealthy to buy political influence.
It should go without saying that the nomination and the expected confirmation of Barrett in the final days before a Presidential election represent a paramount act of hypocrisy for McConnell and the other Republicans who denied even a hearing to Merrick Garland, President Barack Obama’s choice for the Supreme Court, in 2016. But the fact that these Republicans are willing to risk that charge shows how important the Supreme Court is to them. Far more than a senator, a Supreme Court Justice can deliver on the agenda. The war on abortion is just the start.
“I’m used to bullies.”
That’s a line Joe Biden has used several times during his run against Donald Trump, and he said it again recently in talking about the first presidential debate.
“I hope I don’t take the bait, because he’s going to say awful things about me, my family, et cetera,” Biden said at a virtual fundraiser. “I hope I don’t get baited into getting into a brawl with this guy, because that’s the only place he’s comfortable.” Biden expects to be able to keep his cool because, he said, “I’m used to dealing with bullies.”
The challenge for Biden isn’t simply that he’ll be facing a bully on the debate stage in Cleveland on Tuesday; it’s that he’ll be facing a man who is shameless and without conscience, a shatterer of norms and boundaries, a liar of epic proportions, a conspiracy-monger who inhabits an alternate reality. President Donald Trump operates outside any normal parameters.
If one is not used to dealing with someone like that, it can be utterly disorienting. Just ask the 2016 GOP primary field, or Hillary Clinton.
“We were on a small stage,” Clinton said about her second debate with Trump, “and no matter where I walked, he followed me closely, staring at me, making faces. It was incredibly uncomfortable. He was literally breathing down my neck. My skin crawled.”
She went on to describe what went through her mind: Should she keep her calm and carry on as if he weren’t repeatedly invading her space, or should she turn to him, look him in the eye, and say, “Back up, you creep. Get away from me. I know you love to intimidate women, but you can’t intimidate me, so back up”? Clinton chose the first option, but in retrospect, she wonders whether she should have chosen the second.
What might Vice President Biden do to prepare for his debates with President Trump?
For starters, I hope the former vice president’s campaign team has consulted psychologists who can help prepare Biden to deal with Trump’s disordered personality.
A second thing Biden can do is put Trump’s words within a larger context. For example, the president is a profligate liar; we know that in the course of the debates the president will tell an avalanche of falsehoods. It might therefore be useful for Biden, early in the debate, to warn viewers what will happen—Trump will lie, and lie again, and lie again. The former vice president should put a frame around those claims, so people understand what’s happening in real time.
In February, a friend pointed out to me that years ago Donald Trump lied about the size of Trump Towers, claiming he lived on the 66th to 68th floors. Here’s the thing: Trump Tower has only 58 floors, according to New York City documents. So Trump lied about even this, as he lies about virtually everything else. (In fact, Trump has lied about the height of several of his buildings, including Trump World Tower, which he claimed has 90 floors. In fact, it has 70.)
If Biden were to use this story at the beginning of a debate, perhaps even before Trump’s first lie, the former vice president, when hearing a lie, could simply say, “Donald, we’re at the 66th floor again.” This response would certainly be more effective than repeatedly calling Trump a liar and serving as a fact-checker for the entire debate. Biden has to find a way to quickly name what’s happening and move on.
When it’s his turn to respond to a comment by Trump, the former vice president should confidently name each strategy Trump attempted—“That was a deflection … That was a hoax … That was scapegoating … We’re at the 66th floor again.” By quickly and succinctly answering any question after naming the strategy, Biden will appear controlled, reasonable, and intelligent; Trump will feel dismissed and mocked. This will enrage the president, especially if his attempts to engage in argument are ignored, and Biden refuses to look at him.
Beyond that, as one clinical psychologist I consulted for this piece suggested, Biden should simply name what is true and what most Americans intuit about the president: He is a terribly broken man. Money and privilege spared him from the consequences that might have helped him develop a conscience. He does not show remorse or guilt, because he does not feel it. Decency and honesty yield no reward for Trump; indecency and lying yield no consequences. He doesn’t apologize to others, because he doesn’t feel the pain of others. He does not have the capacity for empathy and authentic relationships; all his relationships are conditional. He knows only pleasure and pity for himself. He perseverates on the wounds to his ego. Telling the truth, when it’s not Trump’s truth, is viewed as a betrayal by the president, because he always places his interests above truth.
Such a damaged individual may deserve some measure of pity as well as some measure of contempt; but in either case, such a person should not be the president of the United States.
Yet the reality is that such a man is the president, and with every passing day, his pathologies grow worse, his instability becomes more apparent, the danger he poses to American democracy more undeniable. Yesterday, he once again signaled that he has no interest in accepting the election results if he loses. In the summer of 2016, I said of Trump, “with him there’s no bottom.” We’re now seeing what “no bottom” looks like.
The investigative reporter Bob Woodward, whose book Rage is just the most recent, scathing indictment of the Trump presidency, said that historians, looking back at this period, are going to ask, “‘What the F happened to America?’”
The answer is that Donald J. Trump happened to America.
Joseph R. Biden is the only person who can keep Trump to a single term and stop this ongoing American carnage. And that, in turn, could depend in large part on how the former vice president does during the first debate.
I’m a conservative who served in the Ronald Reagan, George H. W. Bush, and George W. Bush administrations. I’m also wishing Joe Biden very well on Tuesday evening. It’s less for his sake than for the sake of the country I love.