Nothing threatens the progressive project more than the existence of a Supreme Court that adheres to the Constitution. It’s really that simple.
That’s what the tantrum over Justice Amy Coney Barrett’s confirmation is all about. The notion that the same Democrats who shelved the judicial filibuster and now threaten to destroy the separation of powers with a Court-packing revenge scheme — the same people, incidentally, so fond of smear-drenched confirmation hearings — are sticklers for process or decorum is simply ludicrous.
For one thing, no norms have been undone by the confirmation of Barrett. If Democrats won a Senate majority in 2016, Merrick Garland would already be ensconced in the Supreme Court, election or no election. Many of the same Democrats now feigning outrage over Barrett’s confirmation, including Joe Biden, argued back then that it was the constitutional duty of the Senate to take up a vote. Our living constitution apparently offers contradicting directions from one election to the next.
If Trump had nominated Garland to replace Ruth Bader Ginsburg, Democrats wouldn’t have any problem placing him on the Court — not even on November 2. Liberals act as if they are imbued with a theological right to dictate not only the terms, but also the nominees, of confirmation hearings whether they win or lose elections.
And when you’re under the impression that the system exists solely to facilitate your partisan agenda, something will seem “broken” every time you lose. When Barack Obama was unable to pass his agenda after 2010, the system suffered from “dysfunction.” How many times did we hear that term? But now that Democrats are in the Senate minority, employing the very same tools to slow the president, we must “fix” the Electoral College, the Senate, and, most recently, the Supreme Court. If Democrats win back the presidency in 2020, the opposition will no longer be “resisting,” it will be “obstructing.” The filibuster will need fixing again. The media will again obsess over the problem of “gridlock.” History’s trajectory arcs left, and everything else is just an impediment.
The Left has been relying on the same brand of fearmongering over Republican-appointed judges for nearly 40 years. The only difference is that the hysteria has been ratcheted up to stratospheric levels. Yesterday, MSNBC’s Chris Hayes declared that Judge Barrett’s confirmation had “led to the deaths of probably 100,000 Americans.” (I do appreciate that the host slipped in the word “probably,” as if he were seriously calculating the death tolls, rather than saying something utterly insane.)
He wasn’t alone. Ahead of the Barrett vote, Senate minority leader Chuck Schumer claimed this “will go down as one of the darkest days in the 231-year history of the United States Senate.” For contemporary Democrats, the day the GOP confirmed a wholly capable and highly accomplished woman to the highest Court in the land — using the process prescribed under which every justice in history has been confirmed — is as infamous as the filibuster of the Civil Rights Act or the caning of Charles Sumner.
To be fair, Schumer argued that a resolution against Trump’s removal earlier this year was also “one of the darker moments in Senate history” and also that passage of the watered-down Republican tax-reform passage was “one of the darkest . . . days in the long history of this Senate.” So, basically, any time Chuck Schumer loses is the new darkest day in history.
Once Barrett’s confirmation became a reality, however, Democrats began turning to the real problem. Originalism is the stick in the spoke of progressivism. This crusade has the demagogues leading the idiots. The former are people such as Massachusetts senator Ed Markey, who alleges that “originalism is racist. Originalism is sexist. Originalism is homophobic. Originalism is just a fancy word for discrimination.” The latter are the minions who regurgitate this kind of vacuous talking point because they lack a basic comprehension of legal philosophies or civic education that includes an explainer on “amendments.”
None of which is to say the radicalized contemporary Left has nothing to fear. Yesterday, Schumer warned: “A warming planet. Workers falling behind. Dark money flooding politics. The curtailing of the right to choose. The limiting of voting rights. Those are the consequences of this nomination.”
What he means, of course, is that an originalist-majority Court may slow progressive environmentalist policies that undermine personal freedom and local sovereignty. He means that the Court may make it more difficult for Democrats to adopt policies that compel workers to join and fund unions and chip away at the Janus decision. He means lawmakers may not be able continue gnawing at Citizens United and weakening First Amendment protections. He means that unlimited third-trimester abortions on demand and funded by the state might be in trouble, that attacks on religious freedom might be blunted, and that states may be obligated to follow their own laws on Election Day rather than concoct rules as they go along.
Now, I have little doubt that a textualist court will let down partisan Republicans as well. Originalists disagree with one another quite often. But it is unlikely to overturn the traditional role of the state in American life. None of which means that liberals have to lose, only that to win, they’ll have to do so on the Constitution’s terms. The problem is that many would rather destroy it than do so. That’s what this debate is about. The rest is just noise.