The Battle for the Judiciary – Conservatism vs. Progressivism

(graphic credit)

By Jeff Rutherford

The Supreme Court confirmation hearings for Amy Coney Barrett concluded this week.  See the Day1, Day2, and Day3 transcripts. The committee vote will be next week, with the full Senate floor vote soon after. She will likely be confirmed by the end of October, with at least 51 votes in the Senate.

In three days of hearings, Judge Barrett comported herself well.  By the third day, after she had been impressively composed, knowledgeable, and articulate on Day2, the Democrat members of the Senate Judiciary Committee noticeably backed off from attacking her directly.  Why?

Well… another major story so far this month has been Democrat presidential candidate Joe Biden’s refusal to answer whether he supports the desire of many on the Left to pack the Supreme Court if he wins the presidency and the Democrats take control of the Senate.  Could that be why they’re suddenly keeping their powder dry?

Scorched Earth Proposition

The day after the hearing concluded, an article appeared at TheNation.com entitled “There Is Only One Solution to the Amy Coney Barrett Debacle”, and subtitled “Yes, Democrats must expand the courts. Here’s why, and here’s how.”  I have placed its full text at the bottom of this page, with due credit to Elie Mystal at TheNation.com if you wish to read it all.

Here are some key excerpts from Mystal’s scorched earth vision of court packing, which he calls “court expansion” and “court reform”:

“Joe Biden is leading in the polls. Should he win the election…there’s a decent chance he’ll be joined by a Democratic majority in the Senate and the House.  But what then? What’s the Democrats’ plan after that?”

“The obvious—and only—solution…is for Democrats to expand the number of justices on the Supreme Court.  The argument for court expansion is often presented as retribution…. But there is a higher purpose for court expansion, one that goes beyond avenging Ginsburg and Garland. Expanding the court now—through raw political power, if necessary—is the best way to reform and depoliticize the court for future generations. Expanding the court is the way to save it. It’s a lot like breaking a bone to reset the leg.

“The way to free ourselves from the random wheel of death is to have more justices on the court. Ginsburg’s passing would have had significantly less impact on the fate of women’s rights if she had been but one of 19 people instead of nine. By the same logic, it wouldn’t have made sense for Republicans to block Garland’s appointment if it would have changed just one seat on a court of, say, 29 individuals.”

“If you had a bill to add 20 people to the Supreme Court, I’d be willing to split the new seats between, say, 11 Democratic appointees and 9 Republican ones….  If Republicans want to work across the aisle, we can all share. But if Republicans opt to do what they usually do—namely, obstruct the political process and demand that they win all-or-nothing—well, then Mitch McConnell will just have to deal with 20 fire-breathing progressives who will blow clear a path for voting rights, women’s rights, and Electoral College reform. Then let McConnell see if he can regain enough political power in his lifetime to retake the government and add 40 of his own justices.”

Originalism

Judge Barrett is a dedicated constitutional originalist, meaning she will judge cases against the original intent of the legislated statutes and the Constitution as amended. In her own words during Day2 of the hearings:

“I think that both statutes and the Constitution are law. They derive their democratic legitimacy from the fact that they have been enacted, in the case of statutes, by the people’s representatives, or in the case of the Constitution, through the Constitution making process. And I, as a judge, have an obligation to respect and enforce only that law that the people themselves have embraced. As I was saying earlier, it’s not the law of Amy, it’s the law of the American people. And I think originalism and textualism, to me, boil down to that, to a commitment to the rule of law, to not disturbing or changing or updating or adjusting in line with my own policy preferences what that law required.”

She deeply believes that statutory laws and federal policies are to be established and repealed ONLY by the Legislative and Executive branches, not via the rulings of the Judicial branch. Originalists also point out that the Constitution has built-in provisions for how it can be amended, and that is done by the U.S. legislature or by the states, NOT by the U.S. Supreme Court. The Constitution is a written contract between the citizens of the United States and the Federal Government and prescribes (“enumerates”) the powers that the citizens have consented to give to the Federal Government.

Like Judge Barrett, Justice Clarence Thomas is also a strict originalist (as was the late Justice Scalia). Justices Alito, Gorsuch, and Kavanaugh are not “strict” originalists, but they are pretty close. All five of them believe in a limited Federal Government and preserving the non-enumerated powers for the states and the people.

A Living Constitution?

Chief Justice Roberts has revealed himself to be a wandering political weathervane, and has become the “swing voter” since Justice Kennedy retired. He cares more about the popular reputation of the Supreme Court as an institution, than he does about constitutional originalism and limited government. He is intimidatable by bellicose talk from political actors.

(graphic credit)

The late Justice Ginsberg and current Justices Kagan, Sotomayor, and Breyer were/are the opposite of originalists — they are judicial activists that fervently believe in the modern progressive concept of a Living Constitution that morphs over time at the whim of the federal judicial system’s “interpretation” of the cases that come before it.

That’s why I’ve never liked the oversimplification that was taught to most of us in school about the roles of the 3 branches of U.S. government:

The Legislative Branch makes the laws.

The Executive Branch enforces the laws.

The Judicial Branch INTERPRETS the laws.

Hell No! Federal judges are not supposed to “interpret” anything.  That word appears nowhere in the Constitution.  Article III merely defines the Judicial Branch’s jurisdictions.  The role of the federal courts can be found within the definition of “jurisdiction” itself: “Power of the court to adjudicate cases, decide the issue in controversy, and issue orders.”

Rather than being legal interpreters, federal judges and justices are supposed to be objective, nonpartisan umpires calling balls and strikes in the cases that come before them, using the Constitution as the supreme law of the land. By oath, they are to rigidly respect the fact that if the Constitution doesn’t specifically say (per original intent) the federal government has a power, then it does NOT have that power and should stay out of it, reserving those powers only to the states or to the people. This is explicitly required per the 10th amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

I have never understood how Leftist Supreme Court justices can take an oath to faithfully uphold and defend the U.S. Constitution, and then proceed to ignore it and tear it down. I guess they cross their fingers when taking this oath:

“I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States; and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Revealing Their Motive

Finally, here is the most dishonest part of Mystal’s piece:

“A Republican-appointed court will smack down voting rights legislation, gun reform legislation, climate change protections, LGBTQ rights, and abortion rights. It will nullify the Affordable Care Act and block the merest whiff of a public option or Medicare for All.”

What that quote reveals is the American political Left fully realizes their favorite policies and ambitions are NOT PART OF THE ORIGINAL INTENT OF THE CONSTITUTION AS AMENDED.  They know their political enemy is constitutional originalism, and they are declaring all-out war on it.

The only item Mystal mentions in the paragraph above that is consistent with originalism is voting rights legislation.  Federal legislation on voting rights is constitutional per the 15th, 19th, and 24th amendments. However, Mystal lies when he says that conservatives want to “smack down” voting rights legislation.  To be clear:  Conservatives want each American citizen 18 years or older to vote once in each election.

The website “The Nation” is not a news outlet, per se, but it is widely read by the Left.  It provides a portal into the Left’s political philosophies and ambitions.  If you are conservative and believe in constitutional originalism as a foundation for Law and Order in our country, you would be wise to keep your eye on the Leftist media, and don’t turn your back for a moment.

~~~~~

https://www.thenation.com/article/politics/expand-supreme-court/

There Is Only One Solution to the Amy Coney Barrett Debacle

Yes, Democrats must expand the courts. Here’s why, and here’s how.

By Elie Mystal

OCTOBER 15, 2020

There’s a moment in The Princess Bride when the evil and conniving Prince Humperdinck, eager to finish a sham wedding to his unwilling bride, Buttercup, demands that the priest cut to the chase. As the bride’s rescuers prepare to charge the castle, Humperdinck insists, “‘Man and wife.’ Say ‘man and wife’!”

That’s basically where we are with the confirmation process for Amy Coney Barrett. As a majority of the people in this country (and, apparently, a karmically contagious coronavirus) object to the idea of rushing Barrett’s appointment, Republicans just want the Senate to say, “Supreme Court justice!” They don’t care how the Senate gets there or whether the process is so corrupt, it makes a mockery of the principle of advice and consent. They just want the votes counted. Now.

Meanwhile, the Democrats seem poised to storm the castle. Joe Biden is leading in the polls. Should he win the election (and should the GOP-stacked courts allow him to take office), there’s a decent chance he’ll be joined by a Democratic majority in the Senate and the House.

But what then? What’s the Democrats’ plan after that?

It’s essential to remember that the reason Republicans have long sought to control the courts is that they serve as an antidemocratic check on the liberal agenda—and not just for an election cycle but for a whole generation. There’s not a single Democratic law or program that a court controlled 6-3 by conservative justices cannot frustrate or block. A Republican-appointed court will smack down voting rights legislation, gun reform legislation, climate change protections, LGBTQ rights, and abortion rights. It will nullify the Affordable Care Act and block the merest whiff of a public option or Medicare for All. Republicans wanted the court as a hedge against their waning popular support, and now they have it.

The obvious—and only—solution to this Republican power grab is for Democrats to expand the number of justices on the Supreme Court.

The argument for court expansion is often presented as retribution for Republicans messing with the court, first by blocking the nomination of Merrick Garland, now by rushing the appointment of Ruth Bader Ginsburg’s successor. But there is a higher purpose for court expansion, one that goes beyond avenging Ginsburg and Garland. Expanding the court now—through raw political power, if necessary—is the best way to reform and depoliticize the court for future generations. Expanding the court is the way to save it. It’s a lot like breaking a bone to reset the leg.

Let’s start with the obvious: We cannot go on like this. We cannot continue to exist in a polity in which the death of an octogenarian begets a generation-defining game of tug-of-war. We cannot endure under a legal system in which the death of one or two people opens the door to wild changes in our laws or the devastation of the rights of people living under them.

The way to free ourselves from the random wheel of death is to have more justices on the court. Ginsburg’s passing would have had significantly less impact on the fate of women’s rights if she had been but one of 19 people instead of nine. By the same logic, it wouldn’t have made sense for Republicans to block Garland’s appointment if it would have changed just one seat on a court of, say, 29 individuals. Every Supreme Court justice would still be important but not nearly as important as each one is now.

Moreover, a much larger court would likely lead to more moderate opinions (if not more moderate judges, since those don’t really exist). That’s because Supreme Court opinions have to be agreed to by a majority of the court. The reason some cases take longer to decide than others is not that the justices haven’t made up their minds on the outcome; it’s that they are working hard to fashion an opinion that can attract a majority of their colleagues. Trying to get a majority of your colleagues to agree with you on a 29-person court is just a different beast from trying to get your four archconservative buddies to sign on to your ruling. Decisions made for the benefit of more people tend to be watered down. That’s basically how Olive Garden stays in business.

The benefits of court expansion are so manifest that I’d be willing, as a Democrat, to put additional Republican nominees on the court, too. If you had a bill to add 20 people to the Supreme Court, I’d be willing to split the new seats between, say, 11 Democratic appointees and nine Republican ones. I’m serious. The Garland debt must be paid, and the rushed appointment of Barrett cannot be ignored, but otherwise, there’s a benefit to splitting the seats as long as both parties are willing to play ball. A court expansion bill that includes GOP buy-in would be easier for the soon-to-be white minority in this country to handle. In exchange for moderate Republican votes, moderate conservative justices could be among the new appointments.

What’s more, increasing the number of appointments could give Democrats the political leverage they need to prevail in the battle to pass court expansion. If Republicans want to work across the aisle, we can all share. But if Republicans opt to do what they usually do—namely, obstruct the political process and demand that they win all-or-nothing—well, then Mitch McConnell will just have to deal with 20 fire-breathing progressives who will blow clear a path for voting rights, women’s rights, and Electoral College reform. Then let McConnell see if he can regain enough political power in his lifetime to retake the government and add 40 of his own justices. Even the worst-case scenario is better than where we are now. If all an expanded court does is secure voting rights, that will still make it less likely Republicans will ever wield unchecked political power again.

McConnell an offer he can’t refuse. To propose anything less—to walk the more judicious route of adding, say, two or four justices—would be just another example of Democrats gathering all the power and then using it incrementally in the hopes of teaching Republicans to act more responsibly next time. Adding 10 or 20 justices is the way to put Republicans in a corner where they either play ball or spend another generation trying to crawl out from their defeat.

Remember The Princess Bride: When Westley, the hero, finally catches up with Humperdinck, Westley doesn’t fight the prince to the death. Instead, Westley promises to fight “to the pain.” “It means I leave you in anguish, wallowing in freakish misery forever,” he explains. The prince, it should be noted, promptly backs down from the fight.

If the Democrats are to rise from being mostly dead to storming the Supreme Court, that’s what the goal should be. Nobody kills the evil prince. If the Democrats do this right, they won’t have to.

Elie Mystal is The Nation’s justice correspondent—covering the courts,the criminal justice system, and politics—and the force behind the magazine’s monthly column “Objection!” He is also an Alfred Knobler Fellow at the Type Media Center. He can be followed @ElieNYC.

About Necessary and Proper

Jeff believes in the Individual's ability to excel when liberty and freedom of choice are protected. Also believes in the Community's ability to take care of the vast majority of its own issues and needs when the federal government leaves the Community's resources and sphere of control alone. State and local choice produce better results than centralized federal control. https://necessaryandpropergovt.wordpress.com/
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7 Responses to The Battle for the Judiciary – Conservatism vs. Progressivism

  1. Bullright says:

    Good piece. Just simply amazing what all can be done in the sanctimonious name of reform, isn’t it?

    Liked by 1 person

  2. Tricia says:

    Excellent Jeff, well done. It’s really stunning how blatant the far left is in their objectives, we need to actually take them at their word.

    I too wonder about justices who go directly against the Constitution with activist rulings as well as the regular people who champion such things. Truly, what are they thinking? That this path will somehow end well down the road? That the term Banana Republic is just a funny sounding phrase from the movies? I really don’t get it.

    Liked by 1 person

    • Trish,

      Wouldn’t you like to give Obama, Schumer, Pelosi, AOC, Ilhan Omar, Rashiad Tlaib, or Sotomayor a double shot of truth serum, and then ask them what they were thinking when they said “I do solemnly swear………so help me God”? Did they know they were intentionally lying and didn’t care? Or did they have some convoluted rationale based on an alternate morality system that only a leftist intellectual could concoct, like Ward Churchill or Bill Ayers or the 9/11 hijackers possessed.

      – Jeff

      Liked by 1 person

  3. DJ says:

    Here Here!
    First time I’ve ever seen you raise your voice. “Hell No!”
    Been a while since your last piece. More to come?

    Like

    • Hi Deej.

      Yeah, there’s always more to come. No guarantee when, though.

      I write an article here when the need arises to “get it out”. Not on a schedule. In fall 2015 when I stopped posting regularly, it was because I realized that I wasn’t writing much that was unique. I was just echoing ideas from the echo chamber I’m in. And even when I did write something fairly insightful, several commenters that I respect highly were pointing out major points that I missed in my thesis. I decided I had a lot more reading I needed to do than writing. That feeling hasn’t changed much in 5 years.

      It has been said that, “A person is born with two ears and one mouth, and should use them proportionally.”

      – Jeff

      Like

  4. Ward says:

    Nice article.
    Let us hope it never comes to court packing.

    Liked by 1 person

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