Election Issues 2020: Supreme Court

  

      

 

It would appear that the Senate will confirm President Trump’s nomination of Judge Amy Coney Barrett to the Supreme Court this week. She has flown through the hearing process with ease and no one seriously questioned her qualifications, experience, or knowledge of the law. 

 

Democratic complaints that her nomination came too close to the upcoming election can be dismissed with a simple observation. If the shoe had been on the other foot, and a Democratic President, with a Democratic controlled Senate at his disposal, had made the nomination, no Democrat would have argued that the process should be put off until after the people had decided. Just four years ago, President Obama did not hesitate to try and fill a vacancy in an election year. 

 

In our Constitution the President has a duty, not just a right, to appoint a judge to fill a vacancy. The Senate has a duty to advise and consent. It is neither a right nor a duty of the “people” to appoint judges. 

 

Trump haters who refuse to acknowledge that the President has done one good thing in his first term, must admit that the nomination of Judge Coney Barrett is of the highest quality, even if they dislike her conservative values. She has been on the Appeals Court for three years and no one questions her record there.

 

When she was confirmed for the Court of Appeals she was criticized for being an “orthodox” Catholic as if this meant that she was a kind of fanatic. I recall Senator Dick Durbin asking her if she was not just a Catholic but an "orthodox" one. 

 

 The implication of the question, aside from raising the issue of a religious test for office, was that Amy Coney Barrett would be rigid and doctrinaire as a judge. However, as a lifelong Catholic I can say that orthodoxy means just the opposite in the Catholic tradition.

The Latin root of the word orthodoxy is ortho which just means straight, or straighten. An orthodontist straightens our teeth and an orthopedist straightens our bones. For Catholics it should mean holding a middle position between the extremes of puritanism and legalism on one hand, and laissez-faire or anything goes-ism on the other hand.

Moreover, the orthodox Catholic while trying to steer a straight course will seek to trim sails when things are tending toward one extreme or another in order to bring things back into balance. It seems to me that a truly “orthodox” Catholic would be a perfect candidate for the Supreme Court.

The real danger facing the Supreme Court today is not the appointments of President Trump which have been remarkably free of political cronyism and favoritism, but the court packing scheme proposed by Democratic activists. Tampering with the Court is a major issue in the campaign.

 

The continued refusal of Democratic candidates Joe Biden and Kamala Harris to address the court-packing scheme in recent debates is striking. President Trump and Vice-President Pence have been very forthright in opposing any idea of increasing the number of Supreme Court Judges, but their opponents have repeatedly declined to answer pointed questions. 

 

Even if Justice Coney Barrett would be the deciding vote in overturning Roe v. Wade, it would just mean that the issue would go back to the “people” and their representatives to decide. Roe v. Wade is not a law, but a judicial opinion that ruled that state laws prohibiting abortion were unconstitutional. 

Legislators like Biden and Harris have been reluctant to deal with the abortion issue for years but now shudder at the possibility of having to do their duty and legislate. They would much prefer to pack the Supreme Court with compliant judges who will do the legislating for them. 

 

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Kavanaugh Hearing Conclusion

    

Tarred and Feathered

I did not watch last week’s Senate confirmation hearing that featured the dramatic confrontation between Supreme Court nominee Brett Kavanaugh and Christine Blasey Ford who has accused him of sexually molesting her 36 years ago when she was fifteen years old at a house party. Fortunately, important matters kept me out of the house since I had no desire to listen to what has turned into a national disgrace. 

Nevertheless, on the way home my wife and I turned on the car radio right in the middle of Judge Kavanaugh’s spirited and emotional defense. Actually, I thought something might have been wrong with the reception since it seemed to keep breaking up. Only later, did I discover that it was Kavanaugh himself breaking up in tears as he defended himself from the charges.

I thought that Kavanaugh did an excellent job although it seemed obvious that nothing he said would have had any impact on the Democrat senators on the committee whose minds were made up long ago. One commentator remarked that how you felt about Roe v. Wade determined how you felt about Kavanaugh’s guilt or innocence. 

I did not hear Christine Blasey Ford present her charges but have read about her testimony and the subsequent charges that have come forward. It seems to me that it is not just a question about who is lying and who is telling the truth. It might also be instructive to consider the consequences of their versions of the truth.

I believe that it would have been the easy way out for Judge Kavanaugh to admit that as a drunken teenager he groped a fifteen-year-old and threw her on a bed at a wild house party. He did admit that he liked to drink beer, and it seems that drunken house parties were common in the high school set in which he traveled. He could even have claimed that given his semi-inebriated state, he had no recollection of the incident.

He could then have gone on to say that if foolish and shameful things he did while as a teenager were going to be held against him and disqualify him for office, then many people now in office, even in the Senate, might have to resign their positions. 

But Kavanaugh did not say that. Rather he proclaimed his innocence and argued that it was his behavior and career as an adult that should determine his qualifications to serve on the Supreme Court. Incredibly, the impassioned defense of his innocence only made his detractors more certain of his guilt. Whether Kavanaugh is confirmed or not, his reputation has been tarred for life.

On the other hand, Christine Blasey Ford’s unsubstantiated accusation has made her a national hero in the eyes of half the population. The very fact that her story cannot be substantiated also means that it can never be proved that she was lying. 

Actually, it would not matter to many of her supporters if Dr. Ford was lying or not. They firmly believe that lying and false accusations are just one weapon that they can employ if their cause is just. They can shout down and disrespect opponents whose ideas they cannot abide.

In the recent hearings was it just a senior moment that led Senator Diane Feinstein to wait six weeks to ask the FBI to investigate Dr. Ford’s letter? Why did one of Feinstein’s staffers leak the letter after Dr. Ford had requested confidentiality? Why did demonstrators seek to disrupt the hearings in the first place? Why did Yale Law students travel to Washington to protest, in effect, against due process and the right of accused to be presumed innocent until proven guilty? 

I would not be surprised if Dr. Ford went on to a new position at a more prestigious university. I would also not be surprised if book deals, lecture tours, TV appearances, and a movie are also being proposed. We just have to look at Anita Hill’s rise to fame and position after her accusations against Judge Clarence Thomas years ago. Hill is a darling of the feminist movement while Thomas serves in relative obscurity on the Supreme Court. 

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Settled Law 2018

Today, The Weekly Bystander features a guest post  by Rudy Costello, a friend who has been a lifelong student of American history and politics. His article on the nomination of Judge Brett Kavanaugh to fill the vacant seat on the Supreme Court first appeared this morning as a letter to the Connecticut Post.

Fred Scott

   With President Trump's announcement of his Supreme Court nominee the stage is set for some real political theater. The leading actors will be some familiar names: Diane Feinstein, Dick Durbin,Richard Blumenthal and Patrick Leahy, the leading liberals on the Senate Judiciary Committee .  Iin supporting roles we will see Corey Booker and the flamboyant Kamala Harris both of whom will be auditioning for bigger roles in 2020.

   With the likes of these characters what can we expect? Hysteria about conservative attempts to overturn Roe v. Wade ? A "high-tech lynching" [in the words of then nominee Clarence Thomas during his nomination hearings], or a Democrat staging of a three-ring circus? On the other hand there is Senator Susan Collins of Maine, the lonely Republican in the field of deep blue New England.While not on the judiciary committee she has voiced her pro choice concerns about "settled law'and judicial precedent as it pertains to a nominee who might show any hostility to Roe v. Wade.

   It should be noted that historically some settled or established law resulting from Supreme Court decisions have been overturned by one method or another.Two landmark cases stand out.One was the infamouus case of Dred Scott v. Sanford in 1857 and Plessy v. Ferguson in 1896.The former ruled that Americans of African descent were not citizens and could not sue in federal court.It also stated that Congress could not prohibit slavery in the territories of the United States. That judicial precedent was overturned by the passage of the 13th and 14th amendments to the Constitution.

  In Plessy the Supreme Court advanced the " separate but equal doctrne" which in effect legalized "Jim Crow" state segregation laws. This case became the precedent for over fifty years of settled law throughout the South and many parts of the North as well. For those senators concerned about established law and judicial precedent today, how would they have approached a nominnee during the 1950's who wanted to overturn Plessy v. Ferguson?

 Well, it was overturned. In 1954 in Brown v. Board of Education the Supreme Court struck down the "separate but equal' precedent as it applied to segregation in public schools.That Court decision led to the passage of the civil rights legislation of the late 50's and the historic Civil Rights Act of 1964.

  Cleary, this idea of settled law is a ruse as it pertains to Roe v. Wade. It's a political ploy to ramp up the Democrat liberal base, demonize those who are pro-life, and use judicial nominations as a way to promote an idealogical agenda.

  Decisions by the Supreme Court are settled law for the time being. How better off are we as a nation that the Dred Scott and Plessy decisions are now just unfortunate footnotes to our history. Roe may be overturned some day; however, if and when will depend on the merits of a case brought before the Court. Until then no prospective judicial nominee can force the issue.

 There are issues besides abortion that are just as important as the Senate deliberates on this nominee.Nevertheless, tune in on the committee hearings; it most likely will be political theater at its worst directed by Chuck Schemer.

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Supreme Court Decisions

                                 

                                   

I was out of town last week and deliberately out of reach of TV and newspapers but it was still impossible to notice the monumental Supreme Court decisions that were handed down at the end of the week on Federal Health care subsidies and gay marriage. Much has been written about these issues and the newspapers and commentators will have a field day in the weeks to come.

To my mind, the most telling observation came in an opinion expressed weeks before by a legal scholar on the gay marriage case. The June/July issue of First Things noticed the words of Edward Whelan, President of the Ethics and Public Policy organization, who said that “he hasn’t given much attention to the briefs submitted, nor does he plan to follow the oral arguments, ‘because there is little basis to believe that these cases will be decided on legal reasoning’. As Justice Ginsberg said in so many words in a February interview, Americans are ready for gay marriage, so we’ll give it to them. Legal ‘reasoning’ to follow.

It now seems obvious that the justices voting in the majority in both cases went through legal hoops trying to concoct a legal reason for their decisions. All the testimony and legal arguments were just words. As some have already pointed out, the Supreme Court has increasingly acted not as a check and balance on the authority of the Executive branch, or the incompetence of the Legislative branch, but has now become a kind of nanny who corrects and smooths over their mistakes.

Nevertheless, there is one law that the Supreme Court cannot mess around with, and that is the law of unintended consequences. In the case of the Affordable Care Act (ACA) or Obamacare chief Justice Roberts has taken it upon himself to bail out the President’s pet program on two separate occasions. Now no one can say that it won’t get a chance to succeed on purely legal grounds. It was a hastily conceived law passed with an extraordinary degree of legislative chicanery. But this is all water over the dam. Now we will see if the ACA can actually work. Already it appears that even with subsidies from a government that is trillions of dollars in debt, costs are rising dramatically.

In the case of gay marriage I think that it can be argued that the State has always supported and encouraged citizens to marry for a variety of good reasons. One of these reasons is that Society benefits when people make a commitment to one another, a commitment that has legal status and that cannot be disregarded without serious legal and economic consequences.

In my experience as a former financial advisor I found that the best thing a couple could do financially was to marry. However, divorce was usually a financial disaster. For people to marry and stay married, despite the responsibilities involved, was often the key to success. Today, it would appear that many people are afraid of commitment and responsibility. Is this the reason why marriage has become increasingly unpopular with heterosexuals?

While an increasing number of heterosexuals seem uninterested in the benefits of marriage, homosexuals clamor for the right. Homosexuals, whatever the law says, will not be immune to the trials and tribulations of marriage. Now, when things don’t go well, they will not be able to walk away and leave their partner in the lurch. The right to marry is also in this country going to involve the legal consequences of divorce when things go bad.

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