“If the Court’s opinions change with its membership, public confidence in the Court as an institution might decline. Its members might be seen as partisan rather than impartial and case law as fueled by power rather than reason.”
A justice must “think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach. If she is not sure enough, the preference for continuity trumps.”
My problem is not with Amy Coney Barrett as an individual judge. I think there should be conservative judges on the court, even originalists. They should be part of the conversation, but not dominate it. The constitution is just a document born of compromise in an era that could not anticipate how the country would develop, and while the intent of the founders is always an important factor in interpreting the constitution, it should hardly be the only factor.
This is common sense, and from the quotes above, it would appear that Barrett shares in this common sense. I hope so. I believe that Judge Barrett is sincere woman who is motivated to follow the law rather than to implement some ideological agenda. I don't know her, so I could be wrong about that, and time will tell.
My problem is with the way that Mitch McConnell has politicized the process, which is a reaction to the way that Liberals politicized the process back in the 70s. Two wrongs don't make a right. But at this point I see the only solution as increasing the size of the court and then having a random selection process for empaneling judges on a particular case. This will go a long way to de-politicizing it.
Even though court packing sounds like a radical approach, I think it's the only way to restore a more moderate judiciary. My definition of a moderate is someone who tries to find a balance between the original intent of the founders while at the same time understanding that the founders could not anticipate all the problems future generations would face. I don't want to see court fights go on into the future that are determined by culture warriors on either side. The goal would be to appoint competent, tested judges to an expanded court who represent the broad spectrum of constitutional interpretation that the legal community acknowledges as legitimate.
And I would argue that if among this exanded judiciary, there will be a randomness to who is selected for a particular case, there will be an incentive for presidents and the Senate to appoint and approve judges with moderate approaches in their interpretation of the constitution. The goal here is not for Democrats to get one up on the Republicans, but to de-politicize the appointment process as far as is practicable. The pretense that the court is above politics in this moment is ridiculous.
Naming a new supreme court justice should be boring and not excite the political passions in the way it has done since Reagan nominated Robert Bork in '87. Bork's nomination was irresponsible and disruptive of norms, as were other Republican nominations since then, perhaps most egregiously Bush's nomination of Harriet Miers. But even if such bad nominees in a future expanded court get through the confirmation process, their negative impact will be blunted.
Merrick Garland was a moderate. The issue should not have been in his case, or now in the case of Judge Barrett, whether a supreme court justice should be appointed in an election year. It wouldn't matter if the the process was de-politicized and if the nominated judge is a boring, non-ideological moderate. It only matters when the judge is perceived to be an ideologue. The main difference between the nominations of Garland and Barrett is that the first was a perceived to be a moderate and the second clearly is perceived not to be. McConnell's refusal to allow Garland's nomination to go forward was far more ideologically motivated than Obama's nomination. Obama was looking for compromise, while McConnell was only looking to obstruct.
The problem is not necessarily with the judges as individuals but with the limits and flaws of the constitution, which, for all its brilliance at the time it was written, has become a document ill adapted to the exigencies of the 21st century. "So," the originalist will retort, "amend the constitution!" But when people argue that the constitution should be amended, I have to exert enormous energy to control my eyes from violently rolling up into my brain because it is either so naive or so cynical. Naive or cynical because, especially in this bitterly partisan, gridlocked moment, no such amendments are feasible, and stasis favors the entrenched interests. As Lee discovered at Gettysburg, it's much easier to win when you're dug in defensively than gaining ground on offense.
There are thoughtful people who are committed Libertarians and Originalists who sincerely believe that their philosophy is objective and rational without at this same time understanding that these ideologies favor existing power and wealth arrangements. They would vehemently protest such an accusation. That doesn't mean they're right. I daresay judges in the court today can say in all sincerity that their judgments are not influenced by concerns about existing power and wealth arrangements. That does't mean that they are not role players in someone else's agenda to defend existing power and wealth arrangements.
These judges would argue that their job is simply to interpret the constitution. The problem lies in that the constitution has always favored the interests of property, and for that reason favors interests of the wealthy over the interests of the rest of us, especially the propertyless. So someone like Mitch McConnell, who only cares about protecting the property interests of the 1%, is naturally drawn to an originalist interpretation of the constitution because protecting property rights is such an important focus of the constitution. And so it's understandable that whether or not the Federalist Society-minted judges he appoints consciously support his agenda on behalf of the 1%, de facto they do support it. And so McConnell's goal is to appoint judges throughout the federal system who, naively or cynically, will use their constitutional hermeneutic to protect those interests.
And so while Barrett or Gorsuch might be oblivious of how their judicial philosophies enhance McConnell's political agenda, McConnell is not. He is on a mission to pack the court with members of the Federalist society not because he cares about what the founders really thought or whether their constitutional hermeneutics is best approach, but because it helps him to achieve his ideological agenda, which is to protect the interests of the 1%.
That's why McConnell's agenda is simply to defend the status quo by obstruction. If nothing gets done, the interests of the 1% remain protected. I'm sure McConnell couldn't care less about what the founders actually thought. If what they thought supports now the interests of the 1%, he's all for it, but if they have said things that don't support those interests, he'll find a clever rationale to explain why their thinking is no longer relevant.
For McConnell, originalists from the Federalist Society are simply useful idiots to help him to achieve his long-term, democracy-obstructing goals. And so because the greatest threat to McConnell's agenda is posed by people voting against it, he has two basic strategies to neutralize democratically-empowered people to oppose his agenda. The first is to make it as hard as possible for those who oppose his agenda to elect people who will enact laws to undermine it. The second is a backup strategy to fill the federal courts with unabashed right-wing ideologues or nerdy, useful idiots from the Federalist Society who will strike down these laws if they are passed.
The more sophisticated of these judges will often have arguments for obstructing the will of the people grounded in precedent or in their parsing some of the phrasing in the constitution. But whether sincere or cynical, the effect is to protect the entrenched interests of the 1%, and they provide cover for the ideologues who have no respect whatsoever for the constitution or the rule of law.
This is my problem with appointing someone like Judge Barrett in the current political environment. I don't doubt her sincerity, but I fear her naïveté will lead to decisions like Citizens United or Shelby vs. Holder, which in 2013 gutted the Voting Rights Act. Anybody with a sliver of common sense can see how both these decisions support the McConnell agenda. Whether the judges in those cases saw themselves as supporters of that agenda or not is irrelevant. What matters is that the originalist school supports him in it.
Individual judges may not see themselves as political actors, but that doesn't mean that they are not. it's up to the rest of us to support changes in the system that insure that the power is returned to the legislatures. That's the way a democracy should work, and that's what people like McConnell fear most.
In a June post I quoted and commented on a quote from Fintan O'Toole in the NYRB:
Trump’s boast that he can do whatever he wants will have to be institutionalized, made fully operational, and imposed by state violence. Or there will be a transformative wave of change. All of this unfinished business has made the United States semidemocratic, a half-and-half world in which ideals of equality, political accountability, and the rule of law exist alongside practices that make a daily mockery of those ideals. This half-life is ending—either the outward show of democracy is finished and authoritarianism triumphs, or the long-denied substance becomes real. The unconsumed past will either be faced and dealt with, or it will consume the American republic.
This is what's at stake–whether we find a way forward as a vibrant democracy or morph into some East-European style autocracy. Business as usual isn't an option, and so the question is whether the constitution can be interpreted in a flexible enough way that it supports the efforts of those who want the "long-denied substance" of the first, or so rigidly that it plays into the hands of those who want the latter.
MONDAY UPDATE: As if to emphasize my point, this from today's NYT, "Charles Koch's Big Bet on Barret":
Charles Koch has activated his political network to support Judge Amy Coney Barrett’s nomination, and to tip the scales on her nomination battle in the U.S. Senate. While much of the commentary about Judge Barrett’s nomination has focused on the real prospect that Roe v. Wade may be undermined or overturned, Mr. Koch has other concerns. Judge Barrett’s nomination is the latest battleground in his decades-long war to reshape American society in a way that ensures that corporations can operate with untrammeled freedom. It may be a pivotal one.
Read the whole article. People like McConnell are the lapdogs for the the one-percenters like Koch.I'm sure Koch has only a disinterested commitment to make sure that the constitution be interpreted in the way that the founders intended. In the final paragraph the article points out:
History shows that it is just as effective to legislate from the bench by striking down laws as by upholding them. The Lochner era proves that policy negation is just as powerful as creation, and it affects just as many lives. As Charles Koch has written and stated so often in the past five decades, there are many, many laws and programs that he would like to negate. With the nomination of Judge Barrett to the court, he appears to be closer than ever to achieving this goal.
Goes to what I said above about McConnell's backup strategy. Establish a court system that will negate what the democratically elected legislatures enact.
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