Why Democrats hate Bar­rett

Pittsburgh Post-Gazette - - Weekend Perspectiv­es - Ben Shapiro is the edi­tor emer­i­tus of Dai­lyWire. com. He wrote this for Cre­ators Syn­di­cate.

This week, Democrats strug­gled to ex­plain why Judge Amy Coney Bar­rett should not be con­firmed to serve on the Supreme Court. They trot­ted out hack­neyed ar­gu­ments, sug­gest­ing that some po­lit­i­cal norm had been bro­ken by a Repub­li­can pres­i­dent nom­i­nat­ing a judge to be con­firmed as a jus­tice by a Repub­li­can Se­nate in an elec­tion year.

There have been 19 times where a seat be­came va­cant in an elec­tion year and both the pres­i­dency and Se­nate were con­trolled by the same party, re­sult­ing in 17 ju­di­cial con­fir­ma­tions. They sug­gested that Ruth Bader Gins­burg’s dy­ing wish to leave her seat open un­til a Demo­crat takes power rep­re­sented a sort of bind­ing le­gal com­mit­ment.

And they fumed. They fumed that Judge Bar­rett re­fuses to pledge fealty to their po­lit­i­cal pri­or­i­ties. They fumed that Judge Bar­rett has stated that the role of the ju­di­ciary is not to achieve moral ends but to en­force the law. They fumed that Judge Bar­rett had the temer­ity to state that “courts are not de­signed to solve ev­ery prob­lem or right ev­ery wrong in our pub­lic life,” that “the pol­icy de­ci­sions and value judg­ments of gov­ern­ment must be made by the po­lit­i­cal branches” and that she has done her ut­most to “reach the re­sult re­quired by the law,” what­ever her pref­er­ences might be.

That’s be­cause, in the view of the po­lit­i­cal left, the court ought to be merely an­other weapon in its po­lit­i­cal arse­nal. Con­ser­va­tives see the ju­di­ciary as Alexan­der Hamil­ton char­ac­ter­ized it in “Fed­er­al­ist No. 78”: as the “least dan­ger­ous” branch, ca­pa­ble of “nei­ther force nor will, but merely judg­ment,” an in­sti­tu­tion whose le­git­i­macy rests on its un­will­ing­ness to “ex­er­cise WILL in­stead JUDG­MENT.”

Lib­er­als see the court as a su­per- leg­is­la­ture, de­signed to act as moral ar­biters on be­half of pro­gres­sive val­ues. That’s why for­mer Pres­i­dent Barack Obama stated that judges ought to be se­lected for the qual­ity of “em­pa­thy, of un­der­stand­ing and iden­ti­fy­ing with peo­ple’s hopes and strug­gles, as an es­sen­tial in­gre­di­ent for ar­riv­ing at just de­ci­sions and out­comes.”

Crit­i­cal le­gal the­o­rists have sug­gested that con­ser­va­tives are fib­bing -- that their view of the ju­di­ciary as rel­e­gated to judg­ment alone is merely cover for the re­in­force­ment of their po­lit­i­cal pri­or­i­ties. But the data sug­gest other­wise. Dur­ing the 2019 Supreme Court term, for ex­am­ple, out of some 67 de­ci­sions, the four jus­tices ap­pointed by Democrats voted to­gether 51 times; Repub­li­can ap­pointees only voted to­gether 37 times.

As Ilya Shapiro of the Cato In­sti­tute has pointed out, “it’s the ( Ruth Bader) Gins­burg Four that rep­re­sent a bloc geared to­ward pro­gres­sive pol­icy out­comes.” Repub­li­can ap­pointees, in other words, are po­lit­i­cally het­ero­dox sig­nif­i­cantly more of­ten than Demo­cratic ap­pointees. That’s be­cause, on a fun­da­men­tal level, they take their job -- and the con­sti­tu­tional sep­a­ra­tion of pow­ers -- se­ri­ously.

Democrats do not. That’s why they see as the glo­ries of the Supreme Court those mo­ments in which the Supreme Court seized power on be­half of pro­gres­sive ideals. Roe v. Wade has be­come holy writ on the po­lit­i­cal left, specif­i­cally be­cause it robbed the Amer­i­can peo­ple of their right to of vote on the is­sue of abor­tion. Democrats see noth­ing but glory in Supreme Court jus­tices seiz­ing author­ity to pro­tect abor­tion on be­half of defin­ing “one’s own con­cept of ex­is­tence, of mean­ing, of the uni­verse, and of the mys­tery of hu­man life” ( Planned Par­ent­hood v. Casey, 1992).

They see noth­ing but won­der in Supreme Court jus­tices declar­ing that the ju­di­ciary has been del­e­gated en­force­ment of “a char­ter pro­tect­ing the right of all per­sons to en­joy lib­erty as we learn its mean­ing” ( Oberge­fell v. Hodges, 2015). They see noth­ing but cause for cel­e­bra­tion in the Supreme Court cram­ming down on the Amer­i­can peo­ple their own sense of our “evolv­ing stan­dards of de­cency” ( Trop v. Dulles, 1958) or the im­por­tance of ne­ver­be­fore­de­fined “em­a­na­tions” and “penum­bras” ( Gris­wold v. Con­necti­cut, 1965). They want the court to act as an oli­garchy.

And they are an­gry that Judge Bar­rett’s nom­i­na­tion has moved the court away from that pro­gres­sive, oli­garchic rule. That’s why they’re threat­en­ing to pack the court -- be­cause they wish to re­store that oli­garchy to power. And that’s just an­other rea­son why, for all the talk about Mr. Trump’s threats to core Amer­i­can in­sti­tu­tions, he can’t hold a can­dle to even main­stream Demo­cratic will­ing­ness to trash checks and bal­ances on be­half of power.

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