With Barrett, Democrats care about democracy — except when they do not

Themodern left dislikes legislating. Instead, their arguments spasmout during a judicial nomination. It is their safe space for policy.

The president has nominated Judge Amy Coney Barrett for the Supreme Court. One is forgiven if mistaking the left’s vitriol at her as that aimed toward a political candidate or legislator. Judge Barrett is neither, but the left’s response is reflexive. They often long for judges being their preferred policymakers

hen replying to Democrats’ accusation of a politicized judicial confirmation, remember two things. First, the modern confirmation process is a direct consequence of the Supreme Court often inappropriately deciding cases — which is to say, deciding policy issues — best left to state or national legislators. As Judge Barrett said on Sept. 26, “Judges are not policymakers.” If Democrats argue that a nomination close to an election is counterintuitive to democracy, they must admit their guilt in molding a judiciary often acting in progressives’ proudest anti- democratic traditions. The emphasis on selecting judges is the left’s doing. They cannot have it both ways.

Second, Democrats have the constitutional order inverted. They incorrectly emphasize policy when courts are involved yet evade the heavy lifting of a substantive policy and legislative debate. A Sept. 27 article on CNBC.COM is titled “Democrats seek to turn Supreme Court fight into referendum on Obamacare.” Senator Schumer warned that healthcare is in the “crosshairs” with Judge Barrett. Barrett does not threaten laws like a deer hunter at dawn. Laws poorly or inconsistently written will threaten themselves and our constitutional structure. Judges should then rule accordingly, but not decide policy. Shortcomings in a law should first be debated, in due course, during a legislative session. With the ACA, the Democrats have not meaningfully done that in the 116th Congress. They now will fight the ACA’S policy during, of all places, Judge Barrett’s nomination hearing. Barrett cannot answer for healthcare policy, so the left has an unrefuted talking point shaped to their advantage.

The Democrats’ goal of pausing Barrett’s nomination, pending the election, reminds us that we have actual politicians running for office. Ask them, and not the judges, the policy questions. Republicans erred in not emphasizing this more during the 2016 election and the controversy of Judge Merrick Garland’s nomination.

Many questions come to mind for political candidates. Do progressives view the timing and viability of a judicial nomination with the same lens as they do the viability of a fetus? Do they agree with the late Justice Ginsburg’s view in 2019 that a woman terminating her pregnancy “is not a ‘mother’[?]”

Or ask: Why do progressives believes the death penalty is unconstitutional when the Constitution explicitly contemplates its use, and nearly half the states actively allow for it? There’s more. In 2015, the Court found a constitutional right to same-sex marriage, enshrined outside the purview of voter referendum or state laws. So which of the people’s votes matter, and which do not? To what extent is legislative redistricting still a matter for our duly elected legislators, and not unelected commissioners?

It is true that the Constitution rendered certain rights

— as understood at ratification — outside of the legislative process, save for constitutional amendment. But it is the left that conveniently narrows the remaining space for legislation and political activity. So which rights and liberties does the left think are still open for policy debate? Are there hidden ‘rights’ they see in the Constitution which have not yet been ‘ found?’ And a final question for Democratic political candidates: to what extent are the left’s tactics on Barrett the same treatment it gave to Robert Bork in 1987, Clarence Thomas in 1991, Miguel Estrada in 2003, and Brett Kavanaugh in 2018?

The modern left dislikes legislating. Instead, their arguments spasm out during a judicial nomination. It is their safe space for policy. It is easier for the Democratic Party to promote or malign a nominee than it is to legislatively pass or amend law. Remember that when they ask Judge Barrett questions not to probe a keen legal mind, but to pretend to be legislators. Pretending at the wrong time, in the wrong venue, with even the wrong arguments.