The Morning Jolt

Law & the Courts

Tune in to ABC’s Monday Night Judicial Nominations!

President Donald Trump announces his nomination of Neil Gorsuch to be an associate justice of the U.S. Supreme Court at the White House, January 31, 2017. (Kevin Lamarque/Reuters)

They’re all good judges, but for what it’s worth, I hope President Trump nominates Amy Coney Barrett to be the next justice on the Supreme Court.

Ramesh offers several strong arguments for Barrett, and I’ll throw in one more. The way Senate Democrats treated Barrett last autumn — in particular, Senator Dianne Feinstein’s argument that Barrett was simply too religious and too devoutly Catholic to serve on the bench, declaring, “the dogma lives loudly within you,” revealed an argument this country needs to have: whether the country accepts deeply religious people in positions of legal authority.

(It’s kind of amazing that a country that has freedom of religion, that was founded in part by Pilgrims, was a beacon for those seeking religious freedom for generations, and that has had George Washington, John Adams, Dwight Eisenhower, John Kennedy, Jimmy Carter, Ronald Reagan, and George W. Bush as presidents would even need to have this debate. But it is illustrative of how different the modern Left is from previous generations.)

Yes, there are plenty of progressive and Democratic Catholics in this country. But I don’t think you have to look too hard to find progressives who believe, more or less, that devout Catholics — perhaps devout Christians of any stripe — simply can’t be trusted to rule on the law and should be prevented from serving in the judiciary whenever possible. A Catholic judge can insist, loudly and often, that they believe their role as a judge is to rule on the law and the Constitution alone, and that while their faith no doubt shapes their values and their worldview — as much as any religion, philosophy, or atheism shapes the values and worldview of any other judge — and some progressives will insist it’s all a ruse. Some are determined to see any religiously active Christians as theocrats in black robes. (As this 2007 cartoon demonstrates, the arguments are sometimes not that subtle at all; merely an affiliation with a Catholic faith makes you an agent of the Pope.)

You know that if Barrett is the nominee, someone on the Left will make an openly sexist criticism. You know her seven children will be discussed in depth. You know that someone will inevitably make an argument that amounts to, “Look, if we’re going to allow Catholics to be judges, they at least have to be lapsed Catholics.”

Why do some progressives see Catholics and/or Christians as aspiring dictators from the bench, eager to toss away any established rights, established traditions, and impose an oppressive doctrine on the entire country and stifle dissent and differing points of view?

Because that’s how some progressives see the role of the judiciary.

We know that progressives’ recent hosannas (no pun intended) to precedent are as arbitrary and conditional as anyone else’s. Yes, Roe v. Wade (abortion) and Obergfell (gay marriage) are precedents. So is Heller (the Second Amendment). At various times in our history, Korematsu (interment of Japanese Americans), Plessy v. Ferguson (separate but equal), and Dred Scott (African Americans are not citizens) were precedents. Thankfully, subsequent courts reexamined the issues and reversed the decisions. A good judge respects precedent but is always open to the possibility that his predecessors missed some way in which a law violated the Constitution.

There are a lot of ways to define what conservatives consider a good judge — “originalist,” “strict constructionist” — but one of the core concepts is surely that not everything that is bad is unconstitutional, and not everything that is good is constitutional. We would all be better off eating more vegetables, but we don’t want the law and the power of the state forcing us to eat more vegetables.

You may giggle, but that was the example that Justice Antonin Scalia used when the individual mandate of Obamacare came before the Court. When the Obama administration argued that it was constitutional to require people to buy health insurance or pay an additional tax penalty, because everyone had to buy insurance eventually, Scalia suggested, “Everybody has to buy food sooner or later. Therefore, you can make people buy broccoli.” The government insisted requiring citizens to buy a particular vegetable is completely different from requiring them to buy health insurance. Folks on the left scoffed at the comparison, but to a lot of people on the right, it illuminated a key question in evaluating a new law: Just what is the limit on the government’s power to make you do things for your own good?

Progressives want the Supreme Court to be pushing society and its laws leftward — more expansion of the rights of the accused, more expansion of government power (except when it comes to access to abortion), more restriction of expression of religious belief in public spaces, an elimination of the Second Amendment, and restrictions upon the First Amendment that they deem a threat to democracy — i.e., unregulated speech before elections. They can’t imagine that anyone would really want John Roberts’s concept of an umpire judge, calling balls and strikes, with no favor for either team.

Looking Ahead to the Confirmation Vote

Alabama Democratic senator Doug Jones appeared on CNN’s State of the Union and offered the “maybe, we’ll see” noncommittal position that I expect every red-state Democrat to hold for as long as possible:

Oh, I’m open to voting yes. I’m open to voting no. We don’t know who this nominee is going to be yet. I don’t think my role is a rubber stamp for the president, but it’s also not an automatic, knee-jerk No either. My job is to exercise that independent voice. I want to look for a judge that has the intellect and capacity to do the right thing, to follow the rule of law, to adhere to precedents, and move the country forward. And I think that that’s the best role. . . . I am going to make an independent judgment and a view. I don’t think anyone should expect me to simply vote Yes for this nominee just simply because my state may be more conservative than others.

Nate Silver argues that the red-state Democrats will probably just wait to see what Republican senators Susan Collins of Maine and Lisa Murkowski of Alaska do. If the pro-choice Republicans back the nominee, then confirmation is a certainty, and they might as well jump on the bandwagon and get some credit for working across party lines. If the two pro-choice Republicans indicate they’ll vote No, then the nomination will go down if all Democrats remain united in opposition.

The Judicial Crisis Network has already spent $1 million on ads touting the importance of this coming Supreme Court fight. Tonight, immediately after the nomination is announced, the group will spend another $1.4 million on ads on national cable, digital, and in four states including Alabama, Indiana, North Dakota, and West Virginia, “featuring an introductory bio spot about the nominee. The ad will run for one week, and JCN has already reserved another four weeks of air time nationally and in the four states.”

Over in the New York Times, David Leonhardt writes that progressives have to accept that they can’t count on the Court to dismiss conservative arguments and ideas — which means they have to win more elections.

Progressives can still win many of these issues. They simply will have to do so in a small-d democratic way, by winning elections — as they’ve begun to do lately. If Democrats win more governorships and state legislatures, they can keep Republicans from drawing ridiculous congressional maps and infringing on African-Americans’ voting rights — among many other things. If Democrats retake Congress this fall, they can halt the Republican legislative agenda and gain subpoena power.

I realize that a post-Kennedy Supreme Court may one day start throwing out progressive legislation, as happened in the early 20th century. But that’s a fight for another day. Most experts I’ve talked to — scholars and people in politics — believe that elected politicians can prevail in a long-term struggle with unelected judges. Regardless, until Democrats win more elections, it’s a hypothetical concern. “The potential center-left majority in this country — and it’s very real — has to actually organize and elect people to office,” Skocpol says.

[Keep in mind, that for a long time, Republicans and African-American Democrats cooperated to create those majority-minority districts that bother him so much.]

One of the biggest drivers of conservative activism over the past 40 years or so has been pro-lifers who feel like Roe v. Wade short-circuited the legislative debate that America was supposed to have about abortion. Had the Supreme Court not reached that decision, perhaps over the last 45 years we would have had a country where some states have high rates of abortion and some states where it is banned entirely. Our state and local politics might have been much more heated, and people might have voted with their feet.

But perhaps that sense of injustice, that belief that the Supreme Court stole decision-making power that wasn’t meant to be theirs, was the coal in the engine for the Right for decade after decade.

ADDENDUM: David Greenberg with a warning to the Left that nasty tactics don’t always pay off:

Joining Trump in the project of trashing the unwritten rules of public conduct won’t change his policies or governing style. But it will betray our own values and make it harder, once he’s gone, to reconstitute a decent, humane politics. We have nothing to gain from the eradication of a politics-free zone, from a war of all against all that greenlights once-verboten behaviors and permeates once-private spaces.

Besides, as the events of the late 1960s and early 1970s show, the outrageous and obnoxious antics of the militant left ended up hurting their cause. The taunting of public figures isn’t well remembered, and neither will history long record June’s showdown at the Red Hen. But insofar as these actions stem from a determination to score political points by violating civil norms, they—and the repellent and violent methods of extreme protesters more generally—engender a backlash and alienate allies.

Let’s also observe that segments of the angry leftist protesters of the early 1970s morphed into the Weather Underground, Black Panthers, FALN, and even the Symbionese Liberation Army. Radicalism easily curdles into a nihilistic hatred of everything, a belief that nothing is worth preserving and that violence for its own sake is justified.

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