No one can accuse Amy Coney Barrett of grandstanding. President Donald Trump’s nominee to the US Supreme Court has been quizzed in Senate hearings this week, but to little effect. On climate change (“I don’t think I am competent to opine”), voting by mail (“I can’t express a view”) and the constitutionality of Obamacare (“I’m just here to apply the law”), the judge and scholar is discreet to a fault. Democratic senators scold her reluctance to be drawn on the big issues.
In a sense, Ms Barrett is more than within her rights. Judges are there to rule on the specific cases that come before them. In an ideal system, broad statements of policy are for elected politicians or media commentators.
The trouble is that America does not have an ideal system. Its highest court is so mixed up in politics that it almost constitutes a third legislature. In few countries are “liberal” and “conservative” judges so identifiable as such. Ms Barrett would not even have been considered for nomination had she not cleared the tests of the Federalist Society and other Republican groups. It is a tad disingenuous, then, to evade questions of substance now. The Senate should expect at least as much candour as her ideological vetters.
This is all the truer given that one of her first rulings might concern the presidential election itself. Ominously, Mr Trump has said that he wants a full bench (the death of Ruth Bader Ginsburg last month freed the seat in question) in the event that a disputed result goes to the courts. Ms Barrett’s attitude to executive power, and to the mechanics of democracy, would therefore seem to be of more than academic interest. Her best defence is that it is up to senators to tease these things out.
Either way, it seems that Mr Trump will get his wish, and on the timeline he desires. No one doubts that Ms Barrett is intellectually up to the role. As for her character, there is none of the scandal that clung to Brett Kavanaugh, who was accused of historic sexual assault on his way to confirmation two years ago. The White House had kept her in reserve in case his candidacy had fallen through. Polls suggest that she has public backing, too. The rush is unseemly, but her elevation to the highest court of the world’s foremost power, perhaps within the month, is more or less assured. The long-term implications of that appointment are what remain mysterious.
Liberals infer from her Catholicism and her popularity on the right that she will be a stalwart conservative on the bench. Some would even expand the Supreme Court beyond its present nine members to avert the coming 6-3 majority for the right. But the same was thought of John Roberts, the present chief justice. He has turned out to disappoint the conservative movement, preserving Obamacare among other heresies. In the same vein, Ms Barrett may yet surprise, if only to protect the court’s legitimacy. Some of the decisions that conservatives would like from her — against Roe v Wade, or the Affordable Care Act — are unpopular with the public. Again, the court is never entirely free from politics.
Americans are left with a curious moment in public life. A presidential election is raging between Mr Trump and the Democrats’ Joe Biden. Whatever the faults of either man, voters have had decades to discern their views. Each is exposed to unrelenting scrutiny. And yet neither will have as lasting an influence on US life as Ms Barrett, who is cruising towards confirmation as something of an enigma. That she has given away so little this week suggests that she has political guile. Ideally, Americans would know rather more about her than that.