Amy Coney Barrett is headed for the Supreme Court. The wailing and gnashing of teeth have begun. Life is unfair, the world is doomed, the end is nigh. Shocking! An elected president nominated and an elected Senate approved a well-qualified Circuit Court judge to the Supreme Court, following constitutional procedure. Next to come are the 10 plagues of Egypt.
Guardian columnist Arwa Mahdawi penned a strikingly silly article entitled, “Goodbye civil rights: Amy Coney Barrett’s America is a terrifying place.” Yeah, fascists are on the loose, civil liberties have been outlawed, progressive (meaning almost all) publications have been shut, elections have been halted, courts have been closed, soldiers rule the streets, and jails are filled with columnists for leftish British publications. Sigh …
One could imagine a serious article opposing Barrett’s selection. There are disagreements even among the “originalist” community over how best to interpret legal texts. And there are left-wing scholars who advance theories that at least vaguely tie judges and what judges do to what purports to be “the law.”
Strikingly, however, Mahdawi’s article about a nomination to the Supreme Court mentions no legal concepts — ideas about jurisprudence, interpretation, statutory law, and the Constitution. It is purely result-oriented. There is no explanation of how if approved Barrett would incorrectly decipher the meaning of complex legislative and constitutional provisions. Because, it seems, Mahdawi does not believe that the Supreme Court has anything to do with interpreting legislation and constitutions. Judges are simply legislators in robes charged with making up the law and should be accordingly assessed on their votes.
The core of Mahdawi’s article is the claim:
You’ve got to hand it to the Republicans really; they get things done. They don’t care about being called hypocrites. They don’t care about ignoring Ruth Bader Ginsburg’s dying wish that she not be replaced until after the election. They don’t care about common decency. They don’t care about democracy. They just care about power — and they will do whatever it takes to get it.
So just how bad will Barrett be? Could her confirmation mean the end of Roe v. Wade and the federal right to an abortion in America? Is marriage equality in danger? Is it possible she could criminalize birth control? Is America on its way to becoming a Divine Republic? Are we going to look at The Handmaid’s Tale and realize it was a documentary?”
This sounds a lot like the virulently dishonest attack leveled by Sen. Ted Kennedy of Chappaquiddick (and so much more!) fame on Robert Bork, whose nomination to the high court by Ronald Reagan was defeated:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.
One of the many ironies of Kennedy’s attack was that Bork, as solicitor general in the Nixon and Ford administrations, filed amicus curiae briefs in favor of litigants in civil rights cases three-quarters of the time. He took the “liberal” position as often as did Thurgood Marshall in the Johnson administration. While I am no fan of Bork’s philosophy — judges violate their role not by being “activist,” but by imposing their preferred meaning of the law or Constitution — Kennedy’s rendition was not Bork’s America.
A Republican-dominated Supreme Court that just decided that the 1964 Civil Rights Act covers sexual orientation is about to anoint a feudal ecclesiocracy? Really?
As for Mahdawi’s screed, one doesn’t have to defend the Republican Party, something I gave up doing years, even decades, ago, to recognize that hypocrisy envelops politicians on both sides of the aisle. And in the case of judges Democrats are equal opportunity offenders. They filibustered George W. Bush’s judicial nominees. When Republicans did the same to Barack Obama’s selections, Democrats killed the filibuster.
In 2016, Democrats insisted that the president should make an election-year nomination to the Supreme Court. Four years later, they insisted that the president should not make an election-year nomination. Support for one side over the other doesn’t eliminate the obvious, overwhelming hypocrisy of both parties. But is there one politician in human history who has changed his or her behavior because of the charge of hypocrisy?
When did “dying wishes” become a matter of cosmic law? Would Mahdawi have insisted that the world enforce a dying wish by Antonin Scalia that Barack Obama forgo the opportunity to name the justice’s replacement? Does anyone believe there is the slightest possibility that Obama and Senate Democrats would have responded with anything but contempt to Republican pleas seeking to block progressives from placing one of their own on the high court? Would any activist on the left have addressed the issue with anything but laughter? To ask the question is to answer it.
As for common decency, where does Mahdawi see that in politics? How many Senate Democrats ever were high on common decency? Chuck Schumer? Harry Reid? Or go further back. Ted Kennedy? Chris Dodd? Robert Byrd? They look, talk, and act no different than Mitch McConnell. And some of them are a lot worse.
As for democracy, with the Barrett nomination Republicans demonstrated politics in operation at its rawest. American democracy has never been a genteel sport governed by Marquess of Queensberry rules. Power always has been exercised ruthlessly — under Democrats as well as Republicans. But America is not alone. Germany’s famed Iron Chancellor, Otto von Bismarck, supposedly said that “Laws are like sausages. It’s better not to see them being made.” So, too, approval of Supreme Court nominees.
Mahdawi’s litany of horrors confuses who makes the laws in America. The end of Roe v. Wade would not ban abortion across the United States. Such a ruling, which so far has remained out of reach despite 11 Republican high court appointments after Roe until before Barrett, would return to an earlier age when states could regulate the procedure if they wished. Opinion on the issue has since shifted significantly. A half century ago, abortion laws were being liberalized before the Supreme Court short-circuited the political process. Who believes that California, Washington, Illinois, New York, Connecticut, and other states would rush out to ban the procedure? There simply would no longer be a national standard, as the Constitution intended. The issue would be up to the messy political process. In practice virtually anyone who desired an abortion would be no more than one or two states away from getting one.
Moreover, who imagines a groundswell of political support to outlaw same-sex marriage? Gays have married in every state. The Full Faith and Credit Clause requires states to recognize legislative enactments in other states, including same-sex marriage. In the five years since the Court legalized gay marriage in Obergefell v. Hodges, generational change has further entrenched the decision democratically. Which illustrates one reason why the decision should have been left up to the democratic process. Social conservatives were on the political defensive before Obergefell, losing ground naturally. Indeed, the advance was demographically inevitable as younger generations displaced their elders. The high court isn’t likely even to accept a case involving this precedent.
And outlawing birth control? Seriously? In Griswold v. Connecticut the Supreme Court overturned a ban on birth control. Reversing that decision would not ban contraceptives, but would allow states to do so. But the decision is 55 years old and faces no challenge. Even the greatest academic mossbacks have not been challenging this ruling. What social conservative leader has been targeting this issue? Which politician has been campaigning to overturn the decision? What state would vote to prohibit the sale of contraceptives? Even without Griswold these laws would have been repealed decades ago.
As for creating a Divine Republic and implementing The Handmaid’s Tale, in what dystopian land does Mahdawi live? The country that appears ready to elect Joe Biden president is about to impose a medieval theocratic state? A Republican-dominated Supreme Court that just decided that the 1964 Civil Rights Act covers sexual orientation is about to anoint a feudal ecclesiocracy? Really? She should drop political commentary and start writing horror fantasies for a living.
Among Mahdawi’s weirder comments is her concluding aside that “there’s still hope that our civil rights aren’t completely done for.” If Democrats win, she allowed, maybe they will expand the Supreme Court. But if Democrats take control of the White House and Congress, why couldn’t they simply use their lawmaking powers to entrench old and make new “civil rights” laws? If they win the election, they don’t need the courts to act for them.
Just think of the possibilities! Decades ago USC law professor Christopher Stone wrote a famous law review article entitled “Should Trees Have Standing?” arguing that natural creatures and objects should be allowed to file lawsuits (helpfully represented by attorneys like Stone, of course!). A Democratic governing majority could approve legislation protecting the civil rights of not just everyone but also everything. No more mass slaughter of chickens and mosquitoes. Or mass destruction of trees and fields. Then originalist judges would faithfully enforce the new laws. But the lefties would have to go to the trouble of actually passing legislation. Originalist judges won’t simply declare Stone’s law review article to be part of the Constitution.
Perhaps what is most striking about Mahdawi’s list of horrors is her obvious fear of the democratic process. Is she really afraid to engage her fellow citizens on policies that she believes are so self-evidently correct that judges should simply proclaim them to be the law of the land? What other policies does she believe should be removed from common politics and approved by the Supreme Court acting as a continuing constitutional convention, authorized to change the nation’s fundamental law at will? Moreover, which progressive perspective should justices actually impose — Mahdawi’s particular vision of nirvana or someone else’s? After all, there are quite a few. Maybe we could vote on them, like democracy intends!
There is plenty about Republican actions and tactics to criticize. In fact, everything about Barrett’s nomination came down to timing: the GOP held both the presidency and Senate majority at the critical moment. Democrats did not, which is why Barack Obama was unable to fill the Scalia vacancy. As for hypocrisy, indecency, unfair play, and all the rest, Republicans should plead guilty. But no serious political observer imagines Democrats acting any differently if given the same opportunity. Chuck Schumer as a Vestal Virgin of the political process? Tell me another one!
The vital difference between the two parties on legal appointments is that the GOP, or at least many of its members, still recognize that jurists are supposed to interpret legal texts, whether statutes or constitutions. In contrast, most Democrats treat judges as second-chance legislators, chosen to refight a political battle previously lost. The latter position poses a far greater threat to democracy and the rule of law than anything Republicans have done in filling the latest Supreme Court vacancy.
Doug Bandow is a Senior Fellow at the Cato Institute and former Special Assistant to President Ronald Reagan. A graduate of Stanford Law School, he is a member of the California and D.C. bars. He is the author of several books, including The Politics of Plunder: Misgovernment in Washington and The Politics of Envy: Statism as Theology.