It is almost certainly a foregone conclusion that Amy Coney Barrett will be confirmed to sit on the US Supreme Court. However, how should we think about the ethics of her nomination and the confirmation process? Was it ethical for President Trump to nominate her to the Court? Is it ethical for the Senate to confirm her? Should Barrett take herself to be under an ethical duty to step down or issue a public statement calling for a halt to her nomination process, as called for in an open letter by many of her faculty colleagues at Notre Dame?
I published an article, 'The Rationality of Voting and Duties of Elected Officials', addressing these kinds of questions several years ago, and figured I'd briefly share some of the main line of argument here. It won't make a difference, of course, and the argument itself is almost certainly open to question, as virtually all philosophical arguments are. But, be that as it may, it's worth reflecting in times like this on what ethics requires. How, then, do I think we should think about this case?
In a 2010 article in Philosophy & Public Affairs, 'The Paradox of Voting and the Ethics of Political Representation', Alex Guerrero argues that it is rational vote in order to contribute (if only in a small way) to the manifest normative mandate (MNM). for elected officials. In rough outline, an elected official's normative mandate is the extent to the official (and by extension their political platform and policy decisions) is supported by their constituents. In democratic theory, there are grounds for taking such levels of support (or lack thereof) to have normative ethical implications: namely, that elected officials have a standing ethical duty to represent the will of the constituents they govern. Guerrero then argues that election results represent this mandate, as vote totals indicate how many constituents support a given official (and their political platform). That is, election results are the manifest normative mandate indicating how much support an official has if elected to office. The more votes they win by, the stronger claim they have to represent the will of the govern. Conversely, if they win only by a little bit (or lose the popular vote), then they have a weaker claim to represent the will of the governed. Finally, Guerrero argues that this has important normative ethical implications. The greater an elected official's MNM, the more moral justification they have for functioning as a trustee of the people entitled to make their own decisions while in office (in pursuit of their political platform). Conversely, the smaller an official's MNM, the more they have a moral duty to function as a delegate, acting in deference to what their constituents prefer while they are in office.
Notice that, taken all on its own, Guerrero's argument suggests that it was unethical for President Trump to nominate Judge Barrett. Trump lost the popular vote in 2016, giving him an extremely weak MNM. Further, a clear majority of US citizens recently polled have said they believe the winner of the 2020 election should be the one to nominate the new justice. Given Trump's low MNM when elected, this suggests (if Guerrero's argument is correct) that Trump had a moral duty to defer to the majority here. However, in my paper, I argue that things are even more straightforward than this. Guerrero's argument presupposes that elections are the best available measure of an elected official's normative mandate. I argue that this is incorrect: elections are at most a very imperfect measure of an official's normative mandate on the day they are elected, and things can change after their elections. Citizens, in particular, may become deeply dissatisfied with the official, their political platform, and so on–and for obvious reasons: citizens may see that the official is doing a bad job, their preferences as citizens may change due to changing social conditions, and so on. Because an official's support from the public can change dramatically while in office, I argue (contra Guerrero) that from a moral perspective, we have every reason to take ongoing trends in good, corroborated opinion polling to better represent an official's MNM than a mere election result years earlier. In other words, the more support an elected official (and their platform) has while in office, the more morally justified they are in acting on their own judgment. But the less public support they have, the more they should defer to public attitudes.
What does all this mean in the present context? Well, ever since the 2016 election, President Trump's approval ratings have been consistently at near-historic lows. A clear majority of citizens also consistently disapprove of the performance of both Republicans and Democrats in the Senate. Finally, on top of all of that, a majority of citizens think the nomination process should have waited. In other words, when it comes to the Manifest Normative Mandate for nominating and confirming Judge Barrett, things could not be clearer: Trump didn't have a sufficient MNM to nominate Barrett (or any other judge) before the election, and the Senate lacks a sufficient MNM to confirm her. The President and Senate should have deferred to the American people, who preferred all of this to wait until after the election. In other words, if the Guerrero-inspired line of argument above is correct, the nomination of Barrett to the court was unethical, her confirmation is unethical, and–if we think individuals should not be complicit with unethical behavior–Barrett's colleagues at Notre Dame are right: ethics requires her to step aside. Of course, the empirical literature indicates that moral integrity is rare to nonexistent, so none of this will presumably make any difference. It's also entirely possible that my understanding of the ethics of political representation in the above paper is incorrect. But, for all that, I wanted to share this, if only to draw attention to what I, at least, think ethics requires here.
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