Sav­ing the court, sav­ing Amer­ica

The Beaufort Gazette (Sunday) - - Opinion - BY JAY AM­BROSE Tribune News Ser­vice

It was amaz­ing, the first hear­ing of the Se­nate on giv­ing its con­sent to Pres­i­dent Don­ald Trump’s Supreme Court nom­i­nee, Amy Coney Bar­rett. The Democrats pro­duced ir­refutable ev­i­dence that they do not un­der­stand our repub­lic, the Con­sti­tu­tion or the court. They think court de­ci­sions should leg­isla­tively es­tab­lish poli­cies in­stead of pro­tect­ing rule of law.

Demo­cratic sen­a­tor af­ter Demo­cratic sen­a­tor as­sumed that Bar­rett, if placed on the court, would con­cur with five other jus­tices more or less of her ilk in scrap­ping the Af­ford­able Care Act in an upcoming case. They then talked fer­vently about how mil­lions would be left in mis­ery with no in­sur­ance they can af­ford, maybe no in­sur­ance at all if they have pre­ex­ist­ing con­di­tions, a mass catas­tro­phe.

First off, le­gal an­a­lysts say there is al­most no way the court would ter­mi­nate the pro­gram. I ran across one ex­pert say­ing all nine jus­tices would likely vote to sus­tain it. The is­sue has mostly to do with the in­di­vid­ual man­date, the orig­i­nal Af­ford­able Care Act re­quire­ment that Amer­i­cans buy in­sur­ance or pay up with­out it. An ear­lier Supreme Court de­ci­sion changed its penalty sta­tus to be­ing a tax and said it was OK and then Congress got rid of it. Now there’s this idea that the rest of Oba­macare is un­con­sti­tu­tional with­out the sus­tain­ing tax, but the ar­gu­ments are weak and Bar­rett’s con­sti­tu­tion­al­ist mind is not.

Bar­rett says she will not say what she will do on a case un­til she has heard the ar­gu­ments, looked at the ev­i­dence and stud­ied prece­dents, rel­e­vant con­sti­tu­tional lan­guage and rel­e­vant laws and prac­tices, such as pro­tect­ing peo­ple re­ly­ing on a pro­gram. To speak out first would be like skip­ping tri­als be­fore jury ver­dicts. The Democrats strug­gle to grasp Bar­rett’s con­sti­tu­tion­al­ism. It’s not that hard. What it means is that, in de­cid­ing a case, her own pref­er­ences are not im­por­tant. The lan­guage of the Con­sti­tu­tion is.

To ne­glect its con­tent is to con­vert the court to an oli­garchy unan­swer­able to the peo­ple in elec­tions as it de­cides on its own what the Con­sti­tu­tion should say. Leftists con­tend this is an out­dated old doc­u­ment with no grasp of moder­nity and that what we need is a liv­ing Con­sti­tu­tion as for­mu­lated by an­ar­chic, up-to­date pom­pos­ity. Ex­cuse me, but the still-stand­ing found­ing prin­ci­ples hold up ex­tremely well and we have a demo­cratic if nec­es­sar­ily dif­fi­cult amend­ment process that should be ig­nored no more than a pres­i­dent’s veto.

The sec­ond day of the hear­ing, when the calm, cool, bril­liant, good-hearted Bar­rett was more or less in­ter­viewed by com­mit­tee sen­a­tors of both par­ties, was more pleas­ant with sev­eral as­ton­ish­ing ex­cep­tions. One was Sen. Shel­don White­house, D-Rhode Is­land, who in­formed us of a con­spir­acy in which uniden­ti­fied rich peo­ple —“dark money” — are us­ing Bar­rett as part of an ef­fort to take over Amer­ica. Sen. Ted Cruz, R-Texas, crushed him with facts, not the least be­ing that Wall Street and wealthy cor­po­ra­tions are giv­ing three times as much to Democrats as to Repub­li­cans.

To some less ex­treme if still be­fud­dled Democrats, Bar­rett is just a Trump ploy to get from her what­ever he wants — a hor­rific in­sult to her. Some ab­surdly pre­tend the whole thing is it­self un­con­sti­tu­tional. They point to a Repub­li­can farce on a court nom­i­na­tion to jus­tify them now tak­ing roughly the same far­ci­cal po­si­tion, but the scari­est thing in all of this is a ru­inous plan to pack the court if Bar­rett is ap­proved.

The Demo­cratic pres­i­den­tial can­di­date Joe Bi­den is re­fus­ing to state his po­si­tion, ob­vi­ously afraid he will lose votes which­ever way he turns. He should there­fore get no votes.

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