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In 2020, Is Fairness Dead?

enate Majority Leader Mitch McConnell (R-KY) meets with Seventh U.S. Circuit Court Judge Amy Coney Barrett (L), President Donald Trump's nominee for the U.S. Supreme Court, as she begins a series of meetings to prepare for her confirmation hearing, on Capitol Hill on September 29, 2020 in Washington, DC. (Susan Walsh-Pool/Getty Images)
enate Majority Leader Mitch McConnell (R-KY) meets with Seventh U.S. Circuit Court Judge Amy Coney Barrett (L), President Donald Trump's nominee for the U.S. Supreme Court, as she begins a series of meetings to prepare for her confirmation hearing, on Capitol Hill on September 29, 2020 in Washington, DC. (Susan Walsh-Pool/Getty Images)

Like so many other people, it struck me as only fair that Donald Trump should be infected by the virus he’d downplayed, racialized, and failed to proactively address. Seen in that light, fairness is not a high-minded quest for equity, but a form of vengeful biblical justice.

That’s precisely the notion of fairness embodied by the Republicans’ approach to confirming judges and justices while ignoring the legitimately frantic calls for a new COVID-19 relief package, one that is not based in any notion of decency or even-handedness, but in what Joe Biden described as “the exercise of raw power.”

After having refused to even allow Obama Supreme Court nominee Merrick Garland a hearing 10 months before the 2016 election, Mitch McConnell’s decision to push through Barrett’s nomination five weeks before election day raised the question of whether rules were being made up or fairly followed.

In the putrid cage fight called a “debate,” Trump answered it. “We have the Senate, we have the White House … They had Merrick Garland, but the problem is, they didn’t have the election, so they were stopped. So we won the election and we had the right to do it.” In other words, because we won the White House and the Senate, we not only can but should do whatever we want.

Popular will be damned; the winner -- even if in a minority -- gets to rule.

And so it’s now all but certain that Barrett will be the fifth of nine current Justices to have been appointed by a president who lost the popular vote. Her hearings will proceed despite the fact that 74% of voters (88% of Democrats, 77% of independents and 55% of Republicans) want the Senate to prioritize a relief package bill over her confirmation. She’ll be confirmed by a Senate Republican majority representing 15 million fewer people than the Democratic minority. And their expectation in confirming her is that she’ll be the deciding vote to overturn abortion rights (supported by 61% of Americans, with only 38% saying it should be illegal in most or all cases), and to eliminate the Affordable Care Act (supported by 52% of Americans, including 94% of Democrats and 53% of Independents). Popular will be damned; the winner — even if in a minority — gets to rule.

Alas, this lack of fairness is nothing new. The structure of the Senate and the Electoral College, coupled with the rampant gerrymandering and assaults on voting rights in the past 10 years or so, have already rendered the notion of fair governance obsolete.

When the Constitution was ratified, the notion of two senators per state and House of Representative seats allocated based on the population of each state, was equitable. But times have changed.

President Trump removes his mask upon return to the White House from Walter Reed National Military Medical Center on Oct. 05, 2020 in Washington, DC. Trump spent three days hospitalized for coronavirus. (Win McNamee/Getty Images)
President Trump removes his mask upon return to the White House from Walter Reed National Military Medical Center on Oct. 05, 2020 in Washington, DC. Trump spent three days hospitalized for coronavirus. (Win McNamee/Getty Images)

In 1790, when the first Census was completed, Virginia (then the country’s most populous state) had a ratio of senators to citizens of 2 to roughly 374,000. Today, in California, now the country’s most populous state, that ratio is two to roughly 20 million. As a result, we’re now in a situation where “…the voting power of a citizen in Wyoming, the smallest state in terms of population, is about 67 times that of a citizen in the largest state of California.”

And the impact of partisan gerrymandering is profound and only growing. According to the Center for American Progress, on average, in every election since 2012, “59 politicians that would not have been elected based on statewide voter support for their party won anyway because the [Congressional district] lines were drawn in their favor — often by their allies in the Republican or Democratic Party.” As they trenchantly note, “the process allows elected representatives to choose their voters rather than allowing voters to choose their representatives.”

So let’s just stipulate that our entire electoral and governance system has become increasingly unfair and in need of significant reform.

If we consider that fairness is nonetheless desirable, then the question remains: How should our leaders justly govern within the parameters of the current system?

One option is to treat the flaws of our electoral system in the same way that Trump has treated the loopholes in our tax code: Seize every advantage you can to serve yourself (and your base) at the expense of others. This is the “winner take all” school of fairness that McConnell and his ilk have pursued.

Ultimately, if we are to survive as one country, we need to rely on conscience and consideration of the greater good.

The other approach — touchingly quaint but more essential than ever — is to apply philosopher John Rawls’ “Veil of Ignorance” test to governance. Behind this imagined veil, nobody knows who they are — not their gender, their income, their race, where they live, or anything else that might be a clue as to whether the decisions they make will harm or benefit them. As Farnam Street explains, “If they decide men will be superior, for example, they must face the risk that they will be women. If they decide that 10% of the population will be slaves to the others, they cannot be surprised if they find themselves to be slaves. No one wants to be part of a disadvantaged group, so the logical belief is that the Veil of Ignorance would produce a fair, egalitarian society.”

I confess that I felt a stab of schadenfreude when I learned of Trump’s illness, a grim satisfaction that he was reaping the consequences of his anti-science, macho bluster. But like a sugar high, that shot of vengeance wore off quickly. Nobody is better off as a consequence of his illness unless and until his supporters realize that mask-wearing is a socially responsible act, not a partisan one; unless and until Congress acts on the knowledge that their obligation is to all Americans, regardless of party.

Is that hopelessly idealistic? Perhaps, but in an intrinsically inequitable system such as ours, fairness must be more than either an eye-for-an-eye equation or a formulaic insistence that “what’s good for the goose is good for the gander.” Ultimately, if we are to survive as one country, we need to rely on conscience and consideration of the greater good. And to get there, the Republican president and Senate have definitively proven that they’ll have to be swept out of office.

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Julie Wittes Schlack Twitter Cognoscenti contributor
Julie Wittes Schlack writes essays, short stories and book reviews for various publications, including WBUR's Cognoscenti and The ARTery, and is the author of “This All-at-Onceness” (Pact Press, 2019).

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