Editor’s Note: My husband Tim has long been a student of Constitutional Law and History. He earned his Masters in History from Washington State University and wrote his thesis on American Constitutional Development and the Oregon Constitution of 1857.
`1When Amy Coney Barrett’s name came up earlier in the week as the potential nominee for #SCOTUS, we went directly to the source for insight – her own writings. No better way to know how someone thinks than to read their own works. Much better than to read whatever clickbait headline or Tweet being passed around. Because Tim is much more qualified in these matters than I am, I asked him to write a guest post for the blog on the subject of Barrett’s nomination. I hope you will consider Tim’s insights thoughtfully as you consider your own responses.
by Tim Zacharias
Election cycles are the particular bane of our populist mob-politicking. Whether from the so-called right or left, I am inundated with emails, or USPS deliveries, of one nation-destroying deed or quotation after another from the opposing faction’s candidate warning that I should be so frightened and concerned that I ought to be motivated enough to send them a hearty donation.
Currently, we are engaged in our newest civil war, testing whether or not we can survive the placing of one more Federalist Society approved jurist on the highest court of the land.
I certainly disdain FS: it is neither ‘federalist’ nor concerned with judicial interpretation. It is simply one more special interest faction that is bent on getting its way under the guise of strict interpretation, originalism, and judicial restraint propaganda. Nevertheless, those folks on what is called the left should not be getting their ‘panties in a wad’ as my wife says (though I’m never sure of its meaning or application; I’m a damn Yankee).
There is certainly reason to be unhappy that the current POTUS and FS have been able to ‘pack’ the court legally with three members, but the reality is that this has been possible on account of prior Democratic leadership ending filibuster and cloture, in addition to the fact that history teaches us that Ms. Barrett’s addition to the so-called ‘conservative’ majority will not be so horrible as the doomsayers portray. Let’s examine the facts of history candidly.
The ability of the current Senate leadership and the POTUS to seat controversial appointments is a direct result of the Democrats eliminating filibuster and cloture which made judicial approval the product of mere majoritarian power. Furthermore, as countless GOP Senators have noted, there have been 29 confirmations of judges in the final year of a president’s term when, obviously, the party of the Senate and Executive are the same.
In politics, power rules over principle every time.
That is the reality of human nature that Constitutional Architect James Madison wrote about and then exhibited himself as a politician. Democrats have little to whine about in the absence of power, for history shows that they would have been doing the same. The current congressional R’s need only take pause at the thought that sooner or later they will be in the minority again; then, how hard will the other shoe drop?
There is nothing in this appointee’s personal or professional record that impugns on her character as a person of integrity and reason. This is important owing to the fact that one of the burdens that a jurist must face is that the decisions he/she produce profoundly affects the lives of millions of people immediately and into perpetuity. Ms. Barrett will undoubtedly feel this burden regardless of her personal political or religious ideological underpinnings. Her record thus far does demonstrate an allegiance to the Constitution and the application of linguistic integrity and understandable logic.
Her dissent on a 2nd Amendment case was a thoughtful consideration that blanket felony convictions, regardless of nature, should not in itself strip a person of a Constitutional protection. Would this also not apply to voting-rights protections? I would hope that ultimately her commitment to the ‘establishment’ and ‘free exercise’ clauses of the 1st Amendment would lead her into being equally reasonable about the women of this country being able to follow their own conscience over their own personal reproductive lives. If her allegiance to Papal doctrine should interfere with her ability to follow the dictates of the Constitution, then she has clearly written that she has an obligation to society to recuse herself. And, “we the people” will have a duty to remind her of that.
An especially critical reality for the Court is its basis of authority. She will feel the pressure of every jurist that the Court’s sole power derives from the respect the overwhelming majority of society affords it. Lacking such respect, the majority will side with presidents and congresses that ignore its pronouncements, and it will cease to function as a meaningful part of government.
Indeed, Congress might want to consider how its increasing lack of honor among the populace is reducing it authority and increasingly forcing presidents into governing by executive order.
Thousands of adult denizens of this country who were brought as minor children to this country undocumented – but then raised, earned degrees, began careers, began families of their own – have waited over a decade for Congress to pass legislation that would afford them justice. Instead, countless numbers have been deported and families split asunder in service to that devilish slogan of ‘upholding the law.’ The current POTUS, nor this nominee, is the root of our current problems!
On the abortion issue specifically, while I hold the view that it is not the preferred route of dealing with unplanned pregnancies, it is clearly an ideological issue involving one’s conscience that makes it an issue falling under ‘the free expression’ protections of the first amendment, for which government should not have the power to control. Nevertheless, the reality in our society is that in countless counties, and indeed whole states, the ability for a woman who lacks financial means to access an abortion provider is a nullity under the current SCOTUS and standing judicial precedent. What too few have grasped is that female reproductive rights have deteriorated over the past couple of decades long before this Court or this nominee.
In sum, it is perfectly reasonable to raise money and rally support on the basis that presidential choices are important especially owing to the reality that the POTUS has the power to shape the Court’s membership with a mere majority of Senate approval. Indeed, a flaw in Constitutional construction. However, this reality was just as prescient four years ago; yet, tens of thousands of so called ‘progressive’ voters stayed home because they found the major party candidate of that persuasion unworthy of their bothering to vote. Well then, they got what they ‘voted’ for.
There is nothing in this current nominee, however, that changes the dynamic of a POTUS having the power to shape the SCOTUS.
The progressive voter should not have to be motivated to vote for the current more progressive major candidate as a consequence of vilifying Ms. Barrett. For goodness sakes, if you want progressive judges, policing reform, economic and health-care equity, respect among the nations of the world, environmental protection, etc., then go vote for it because it is the right and principled thing to do — but not because someone has frightened you into it. God helps us all!