Posts published in “Politics”

This is not just a fight for one Supreme Court nominee. It is a fight for the rule of law, the restoration of Constitutional government, and the right of women to live freely without being stereotyped by the political and cultural Left.

President Trump reportedly will select Amy Coney Barrett to replace Ruth Bader Ginsburg on the Supreme Court.

In a better and more politically mature country, this would be significant news, of course, but hardly the occasion for a titanic political fight, with far-reaching ramifications that promise to resonate deeply throughout the wider culture.

Yet, both the Left and the Right, conservatives and progressives, Democrats and Republicans, view this nomination as critically important and a landmark event in American history.

Judicial Overreach. That is because the courts and the judiciary increasingly have played an outsized role in American politics. Public-policy decisions that, by all rights under the Constitution, should be decided by the American people through their elected representatives have been decided instead by unelected judges.

The Left generally has welcomed and promoted judicial overreach because it has allowed them to short-circuit the legislative process and to achieve their political and public-policy objectives through judicial decree.

For this same reason, of course, the Right generally has lamented and opposed judicial overreach because it has denied them even the possibility of achieving their political and public-policy objectives legislatively and at the ballot box.

Hence the present moment, where nominations to the Supreme Court have become politically momentous events that promise to radically alter our public-policy universe. But this is not what the American Founding Fathers intended when they created an independent judiciary.

The Founding Fathers viewed the judiciary as performing an important but limited role: interpreting and applying the law in a narrowly prescribed technical sense, not creating new rights that correspond with our evolving sense of justice.

If the courts had remained faithful to this original purpose, then we would be spared all of the Sturm und Drang that now surrounds Supreme Court nominations.

Instead of being political spectacles, where underhanded partisans try to destroy the nominee, we would have more low-key affairs in which the Senate performs its advise and consent role with little notice and little fanfare.

Left-Wing Attacks. Of course, as the Wall Street Journal points out, the vicious and savage attacks on Supreme Court nominees have come exclusively from one side: the political left.

The low-blows started with the smearing of Robert Bork in 1987 and they culminated in the attempted character assassination of Brett Kavanaugh two years ago. Democratic nominees, by contrast, have been treated fairly and respectfully by conservatives.

But as a married woman with seven children—including a special needs child and two adopted children from Haiti—Barrett is much more difficult target to smear and defame.

And that is why her nomination is so critically important: because it promises to restore, finally and belatedly, the Constitutional balance of power between the legislative, executive, and judicial branches of government; and because it promises a fair and honest fight—a fight which will help illuminate for the American people what is at stake and the proper role of the judiciary in our system of government.

Conservative Disappointment. I say finally and belatedly because conservatives have been trying for decades to rein in the courts through judicial appointments, but with limited success and much disappointment.

Robert Bork, for instance, never made it to the Supreme Court after being smeared by the Left and narrowly voted down by the Senate. His replacement, Anthony Kennedy, was no originalist.

Kennedy, in fact, voted to uphold an utterly manufactured Constitutional right to abortion, while spearheading a series of decisions that culminated in an equally fabricated Constitutional right to same-sex marriage.

To avert a contentious Senate confirmation fight, George H. W. Bush gave us David Souter, who turned out to be reliably liberal or left-wing justice. And George W. Bush gave us Chief Justice John Roberts, who has inexplicably sided with the Left in several key decisions involving, for instance, Obamacare and the U.S. Census.

Even Neil Gorsuch, a Trump nominee, has surprised and disappointed conservatives by finding new “progressive” meaning in statutes long considered fixed and settled.

For this reason—because conservative justices can occasionally stray and be heterodox and unpredictable in their thinking—it is probably necessary to have six originalists on the Court before Constitutional order can be restored.

A Justice Barrett would be, essentially, the Court’s sixth originalist.

Cultural Significance. Barrett’s ascension to the high court also will have far-reaching political and cultural significance. She is a practicing Catholic who takes her faith seriously and, as mentioned, is the mother of seven children, including a special needs child and two adopted children from Haiti.

As such, she represents a type of woman in America—conservative and religious, educated and accomplished, professional and family-oriented—that progressive cultural denizens in Hollywood and the media ignore, ridicule, and caricature.

Yet there are millions of such women in America today and their voices deserve to be heard and recognized.

A Justice Barrett, simply by being who she is, will help ensure that these women—our wives, mothers, sisters, and daughters—no longer are ignored, ridiculed, and caricatured.

In short, this is the fight we want and the justice we need. Barrett’s nomination is the culmination of a decades-long effort to restore Constitutional government in America. The country will be notably freer and immeasurably better off when that is achieved.

Feature photo credit: The Federalist.

1. Where in the Constitution, exactly, does it prohibit a president from appointing someone to fill a vacancy on the Supreme Court in an election year?

2. Previous American presidents—including Thomas Jefferson, Abraham Lincoln, and Woodrow Wilson—nominated Supreme Court justices in an election year, and the Senate confirmed those nominees before the election.

Other American presidents—including John Adams, Ulysses S. Grant, and Calvin Coolidge—nominated justices after the election but before the inauguration; and those nominees, too, were confirmed by the Senate.

Were these American presidents guilty of some illegal or damnable transgression—or instead, were they exercising their lawful authority under the Constitution?

3. Assume the shoe was on the other foot, so to speak. It is Sept. 18, 2012. Obama is president; he is up for reelection but trailing in the polls; the Democrats control the Senate but risk losing control after the election; and Justice Scalia has died.

Would not Obama nominate a new justice to replace Scalia, and would not Senate Democrats act to confirm Obama’s nominee?

4. Long-standing Senate tradition (not law) allowed for use of the filibuster to prevent judicial nominees from being confirmed by the Senate. Stopping a filibuster requires 60 votes.

Practically speaking, given the makeup of the Senate, to reach the 60-vote threshold typically requires at least a bare minimum of bipartisan support.

However, in 2013, Democratic Senate Majority Leader Harry Reid (D-Nevada) prohibited use of the filibuster for most judicial nominees. Republican Senate Majority Leader Mitch McConnell (R-Kentucky) then followed suit in 2017 and eliminated use of the filibuster for Supreme Court nominees.

This allowed Senate Republicans to confirm Trump appointee Brett Kavanaugh with just one Democratic vote; and it will allow Senate Republicans to approve Ginsburg’s replacement with, potentially, no Democratic votes.

Given this history, was it a mistake for Harry Reid to eliminate the filibuster for judicial nominees? Did this not pave the way for Senate confirmation of Trump’s three Supreme Court nominees?

5. Since the middle of the 20th Century, Democrats and leftist have relied upon the courts, or the judicial branch of government, to achieve political and public policy objectives that they never could have achieved legislatively—for example:

• banning voluntary school prayer;
• requiring abortion on demand;
• mandating various and sundry environmental protection measures, school and prison reforms; and now:
• dictating federal immigration policy and state voting requirements.

Has it been it a mistake to rely so heavily on the courts and the judiciary to achieve your political and public policy objectives—especially since Republican court appointees are often unwilling to accede to assertions of judicial supremacy vis-a-vis the executive and legislative branches of government?

6. Do you believe there are any limits on the jurisdiction of the courts, or is every political and policy issue justiciable?

7. Some Democratic leaders—including House Judiciary Committee Chairman Jerry Nadler (D-New York)—have called on Senate Democrats to expand the size of the Supreme Court and pack it with more liberal or activist judges.

Justice Ginsburg, however, said court-packing is a bad idea because it would undermine the Court’s legitimacy and weaken public trust in the institution.

Who’s right about expanding or packing the Court: Chairman Nadler or Justice Ginsburg?

8. An independent judiciary free of political coercion or control is one of the pillars of American democracy.

Yet in recent years, this independence has been threatened by Democratic Senators such as Charles Schumer (D-New York), Sheldon Whitehouse (D-Rhode Island), and Richard Blumenthal (D-Connecticut), all of whom have warned that unless the Court rules in a “progressive” direction, it risks being brought to heel and radically restructured.

Can we not agree that while we certainly can criticize Supreme Court decisions, we ought to refrain from demanding that the Court rule a certain way or risk suffering some vague but ominous-sounding consequences?

Do not such threats strike at the very heart of judicial independence?

9. Some Senate Democrats—including Dick Durbin (D-Illinois) Marie Hirono (D-Hawaii) and Kamala Harris (D-California)—have suggested that practicing Catholics who belong to Catholic religious organizations, such as the Knights of Columbus, should be disqualified from federal judgeships.

The reason: practicing Catholics have religious beliefs that are opposed to progressive orthodoxy on a range of issues (such as abortion and same-sex marriage) where progressive orthodoxy has been incorporated into the Constitution and established as new rights.

The Constitution, however, expressly prohibits a religious test for governmental service; and prominent Catholics such as President John F. Kennedy (a Democrat) and Justice Antonin Scalia (a Republican) have expressly said that their religious faith does not override the oath that they take to the Constitution of the United States.

Who’s right about whether practicing Catholics should be disqualified from the federal judiciary because of their religious faith: Senators Durbin, Hirono, and Harris, or President Kennedy, Justice Scalia, and the Constitution?

10. Liberal interest groups and Democratic Senators have viciously and savagely attacked the character and good name of a series of recent Republican Supreme Court nominees—including Robert Bork, Clarence Thomas, Samuel Alito, and Brett Kavanaugh.

Bork and Alito, for instance, was accused of being racists; Thomas was accused of sexual harassment; and Kavanaugh was accused of participating in a gang rape. The evidence for these accusations was utterly lacking. The charges reflected a partisan political desire to destroy these nominees before they could ascend to the high court.

Can we refrain from the politics of personal destruction and instead, debate the merits, qualifications, and judicial philosophies of Supreme Court nominees? Is that asking too much in this, the world’s greatest democracy?

Feature photo credit: Kevin Dietsch/UPI.

The battle over Trump’s next appointment to the Supreme Court should be heated and intense, but civil and respectful. Justices Scalia and Ginsburg would not have wanted it any other way.

The death of Ruth Justice Bader Ginsburg Friday means that there will be, as the Wall Street Journal rightly notes, a “titanic fight over her successor.” This is fitting and appropriate.

The stakes, after all, are very high: The future direction of the Supreme Court, our essential civil liberties, and the rule of law are all at risk.

Indeed, as Sen. Ted Cruz (R-Texas) points out, the Second Amendment right to bear arms is being erased from the Constitution because of the high court’s neglect. And religious liberty decisions typically are decided by a 5-4 margin and on narrow technical grounds that fail to reflect the overriding importance of this essential First Amendment right.

Judicial Power-Grab. Moreover, more left-wing “progressive” justices may well mean that the Court will legislate new and costly entitlements into the Constitution—a “right to healthcare,” for instance.

Sounds farfetched? Maybe. But so, too, did a Constitutional right to homosexual marriage—until it became politically fashionable and the object of a concerted legal campaign.

The result was the Court’s 2015 Obergefell v. Hodges decision that redefined marriage to include same-sex unions—an idea genuinely never contemplated by the American Founding Fathers who wrote the Constitution.

So yes, there is a lot at stake with this newest Court vacancy: whether we will remain a free and self-governing people, or whether we will be ruled by nine unelected judges who, increasingly, usurp from us our decision-making authority under the Constitution.

Scalia and Ginsburg. That said, we all can and should learn from the example set by Justice Ginsburg and the late great Justice Antonin Scalia. These two legendary jurists were ideological opposites and long-standing judicial sparring partners; yet they enjoyed a deep and abiding friendship.

Justice Ginsburg, of course, was the leader of the Court’s left-wing “progressives”; Justice Scalia the leader of the Court conservatives.

Their judicial opinions frequently clashed, especially on big, high-profile cases involving the Second Amendment, religious liberty, affirmative action, property rights, and state sovereignty. Yet, these two opposing jurists had great affection for one another and were genuinely the best of friends.

Justice Scalia’s son, Christopher, relays this wonderful and telling story from Judge Jeffrey Sutton during a visit Sutton had with Scalia before the justice’s death in 2016:

The Scalia and Ginsburg families regularly socialized. They celebrated every New Year’s Eve together, for instance. And yet: the two justices never allowed the intensity of their judicial disagreements to ruin or obstruct their personal friendship.

How to Fight. “I attack ideas; I don’t attack people,” is how Justice Scalia wisely put it. Good and wonderful people, he observed, can harbor or espouse very bad ideas. That means they are mistaken; it does not mean they are bad or deficient in character or morals.

In other words, politics is one thing; character is another thing; and, if you cannot distinguish between the two, you are allowing your politics to blind you to the decency and humanity of your fellow citizens, both left and right.

This is something all of us would do well to consider as we prepare for what will no doubt be a pitched political battle involving the next and newest justice of the Supreme Court.

High-Stakes Battle. This battle promises to be highly emotional and deeply felt—on both sides. The intensity and passion will be palpable. Everyone knows that there is a lot riding on this appointment. The next justice may well serve on the Court for 40 years or more.

But let us all strive to be fair-minded, judicious, and even-tempered. Let us all realize that, in the United States of America, our domestic political opponents are not our enemies; they are our friends, neighbors, and family members. 

Let us all try to emulate the wonderful and worthy example of Justices Scalia and Ginsburg.

Civility. Let us disagree without being disagreeable. Let us vigorously engage the political debate without engaging in the politics of personal destruction. Let us recognize that, despite our profound disagreements, there is far more that unites us than divides us.

And, when the fight is over, let us come together as Americans who share a common political lineage and a worthy political goal: liberty and justice for all in these United States.

Surely, that is what Justices Scalia and Ginsburg would have wanted. And certainly, that is the example they set in their own lives through a deep and abiding friendship that transcended political and ideological differences.

May their example be our reality.

Feature photo credit: The Kalb Report, YouTube.