Dems Make Losing Arguments Against a Judicial Star
Judge Amy Coney Barrett stands strong.
The Senate Judiciary Committee began the Supreme Court confirmation hearing for Judge Amy Coney Barrett on Monday to replace the late Justice Ruth Bader Ginsburg. The hearing is expected to last about four days. The first day was devoted to opening remarks by the members of the committee, with Judge Barrett delivering her powerful prepared statement towards the end of the day’s session.
Republican Senator Lindsey Graham of South Carolina, the Senate Judiciary Committee Chairman, started things off by providing assurances that the in-person hearings were being conducted in compliance with CDC protocols. He praised Judge Barrett’s record and character. Graham acknowledged, however, that this confirmation process is “probably not about persuading each other.” He predicted that all Republicans on the committee will vote yes and all Democrats will vote no – a safe bet. He pined for the good old days when nominees for the Supreme Court were judged in a bipartisan fashion on their qualifications, not on the basis of their ideologies.
The Republican committee members lauded Judge Barrett’s sterling qualifications and character. They decried the Democrats’ attacks against Judge Barrett’s faith. They tore apart the Democrat members’ repeated predictions of how Barrett would vote on hot button issues such as Obamacare if she is confirmed. Senator Chuck Grassley of Iowa, for example, said that Democrats should not presume that they know how a justice will vote on any particular case. He recalled how the left had originally condemned former Justices Anthony Kennedy and David Souter on ideological grounds and then turned around with praise for the opinions these justices wrote that conformed with the left’s desired outcomes.
The Republican members also schooled their Democrat colleagues and the American people on the constitutional provisions for nominating and confirming a Supreme Court justice. The Constitution authorizes the president to nominate a qualified person to fill a Supreme Court vacancy and authorizes the Senate to provide its “advice and consent” on the nomination at any time during their respective terms. The Republicans pointed to the number of instances in the past when a president and the Senate majority from the same party have nominated and confirmed a justice for the Supreme Court during an election year.
Joe Biden is lying to the American people when he claims that Judge Barrett’s nomination and confirmation during an election year is “unconstitutional.” Biden also showed his contempt for the American people when he said that the voters did not deserve to know before Election Day whether he favors packing the Supreme Court with additional justices beyond the current nine.
The Democrat members of the Senate Judiciary Committee tried to appeal to raw emotion by exploiting people’s fears about their health care – the Democrats’ number one political issue. The Democrats used portraits of Americans with preexisting conditions, who are said to be currently protected by Obamacare, as props to score political points. It took the Democrats’ ranking member Senator Dianne Feinstein only about two minutes to get the Obamacare scare ball rolling. At least Feinstein held back in her opening remarks from attacking Judge Barrett’s Catholic faith, as opposed to what Feinstein did during Barrett’s 2017 confirmation hearing for a seat on the federal Seventh Circuit Court of Appeals. But it was only the first day.
Feinstein and her fellow Democrats claimed that millions of Americans with preexisting conditions would lose all their protections if Judge Barrett makes it to the Supreme Court before a constitutional challenge to Obamacare is heard by the Court on November 10th. The Democrats are cynically playing politics with health care, which they believe is a winning issue for them. Their aim is to caricature Judge Barrett as a rightwing extremist who will do Donald Trump’s bidding to get rid of Obamacare once and for all.
Democratic vice-presidential nominee Kamala Harris, supposedly speaking in her capacity as a member of the Senate Judiciary Committee, appeared remotely from her Senate office to deliver what might as well have been a campaign speech. After complaining that Republicans were prioritizing Judge Barrett’s confirmation over dealing with the health and economic fallout from the coronavirus pandemic, Harris accused Republicans of rushing Barrett through to the Supreme Court because they want the Supreme Court to do their “dirty work” on Obamacare.
The Democrats’ attempt to scare the American people with idle speculation regarding how Barrett would vote on Obamacare or on any other issue such as abortion is nothing more than shameless demagoguery. It harks back to how Democrats treated previous nominees for the Supreme Court selected by Republican presidents. It’s called “borking,” named after the vilification campaign the Democrats successfully conducted to defeat the Supreme Court nomination of Robert Bork in 1987. This disgraceful tactic will not work this time so long as the Republican majority in the Senate remains resolute.
The Democrats also advanced their go-to process argument that jamming through a vote on Judge Barrett’s confirmation before the American people have a chance to vote for the next president would make her confirmation “illegitimate.” Rhode Island Sen. Sheldon Whitehouse, for example, claimed to speak for “regular people” when he declared: "My constituents want you, my colleagues, members of the Republican Party, to stand up for once to Mitch McConnell and to the big donors who are driving this process, and for the sake of regular people say, 'Stop.'"
Here’s a message for Sheldon Whitehouse, Chuck Schumer, Kamala Harris, and all the other complainers who oppose Judge Barrett’s nomination: There are millions of “regular people” who want the Senate Republican majority to move full steam ahead. Voters in contested Senate elections voted to expand the Republican majority in 2018 from what it was in 2016. They elected senators who had promised voters during their campaigns to help President Trump keep his promise to fill any further Supreme Court openings during his first term in office with conservative judges. They are keeping their promises.
Judge Barrett waited patiently with her mask on as the senators droned on. Finally, it was her turn to remove her mask and speak. The importance that she attaches to her family came through loud and clear. So did her fidelity to the rule of law and her respect for the proper role of the judiciary in our constitutional system of separation of powers. “Courts are not designed to solve every problem or right every wrong in our public life,” Judge Barrett said. “The policy decisions and value judgements of government must be made by the political branches, elected by and accountable to the people.”
Judge Barrett, who clerked for the late Justice Antonin Scalia, described the influence that Justice Scalia had on shaping her own judicial philosophy. “His judicial philosophy was straightforward: A judge must apply the law as it is written, not as she wishes it were,” Judge Barrett said. “Sometimes that approach meant reaching results that he did not like. But as he put it in one of his best known opinions, that is what it means to say that we have a government of laws, not of men.”
At the same time, Judge Barrett’s humanity shown through when she expressed her empathy for the real people affected by the cases that a judge must decide. “I try to remain mindful that, while my court decides thousands of cases a year, each case is the most important one to the parties involved,” she said. “After all, cases are not like statutes, which are often named for their authors. Cases are named for the parties who stand to gain or lose in the real world, often through their liberty or livelihood.”
Judge Barrett added that she tries to look at her opinions from the perspective of the losing parties. “When I write an opinion, I read every word from the perspective of the losing party. I ask myself how I would view the decision if one of my children was the party I was ruling against," she said.
Judge Barrett can expect some very tough questioning from the Democrats on the Senate Judiciary Committee in the days ahead. The hearing is not likely to become the despicable circus the Democrats treated us to during the Justice Kavanaugh confirmation hearing two years ago. But Democrats will try their best to pigeonhole Judge Barrett as a Trump stooge and an extremist who will threaten affordable health care, a woman’s right to choose, voting rights, and equality for people of color and people belonging to the LGBTQIA community. The Democrats will pressure Barrett to agree, if confirmed, to recuse herself from any 2020 election challenges coming before the Supreme Court as well as from the upcoming Obamacare case.
Judge Amy Coney Barrett appears strong enough to withstand the pressure and resist taking the Democrats’ bait. Barring any major unforeseen circumstances, she is very likely to be confirmed relatively soon – perhaps by the end of this month. But the left is already girding for revenge. Their priority will be to pack the Supreme Court and turn it into their own progressive super-legislature if Joe Biden wins the election and the Democrats take control of the Senate while holding on to the House. Biden’s refusal to level with the American people before Election Day on where he stands on court packing shows how much of a Trojan Horse he is for the radical left.