By David Harsanyi
Tuesday, October 27, 2020
Nothing threatens the progressive project more than the
existence of a Supreme Court that adheres to the Constitution. It’s really that
simple.
That’s what the tantrum over Justice Amy Coney Barrett’s
confirmation is all about. The notion that the same Democrats who shelved the
judicial filibuster and now threaten to destroy the separation of powers with a
Court-packing revenge scheme — the same people, incidentally, so fond of
smear-drenched confirmation hearings — are sticklers for process or decorum is
simply ludicrous.
For one thing, no norms have been undone by the
confirmation of Barrett. If Democrats won a Senate majority in 2016, Merrick
Garland would already be ensconced in the Supreme Court, election or no
election. Many of the same Democrats now feigning outrage over Barrett’s
confirmation, including
Joe Biden, argued back then that it was the constitutional duty of
the Senate to take up a vote. Our living constitution apparently offers
contradicting directions from one election to the next.
If Trump had nominated Garland to replace Ruth Bader
Ginsburg, Democrats wouldn’t have any problem placing him on the Court — not
even on November 2. Liberals act as if they are imbued with a theological right
to dictate not only the terms, but also the nominees, of confirmation hearings
whether they win or lose elections.
And when you’re under the impression that the system
exists solely to facilitate your partisan agenda, something will seem “broken”
every time you lose. When Barack Obama was unable to pass his agenda after
2010, the system suffered from “dysfunction.” How many times did we hear that
term? But now that Democrats are in the Senate minority, employing the very
same tools to slow the president, we must “fix” the Electoral College, the
Senate, and, most recently, the Supreme Court. If Democrats win back the
presidency in 2020, the opposition will no longer be “resisting,” it will be
“obstructing.” The filibuster will need fixing again. The media will again
obsess over the problem of “gridlock.” History’s trajectory arcs left, and
everything else is just an impediment.
The Left has been relying on the same
brand of fearmongering over Republican-appointed judges for nearly 40
years. The only difference is that the hysteria has been ratcheted up to
stratospheric levels. Yesterday, MSNBC’s Chris Hayes declared
that Judge Barrett’s confirmation had “led to the deaths of probably 100,000
Americans.” (I do appreciate that the host slipped in the word “probably,” as
if he were seriously calculating the death tolls, rather than saying something
utterly insane.)
He wasn’t alone. Ahead of the Barrett vote, Senate
minority leader Chuck Schumer claimed
this “will go down as one of the darkest days in the 231-year history of the
United States Senate.” For contemporary Democrats, the day the GOP confirmed a
wholly capable and highly accomplished woman to the highest Court in the land —
using the process prescribed under which every justice in history has been
confirmed — is as infamous as the filibuster of the Civil Rights Act or the
caning of Charles Sumner.
To be fair, Schumer argued that a resolution against
Trump’s removal earlier this year was
also “one of the darker moments in Senate history” and also that passage of the
watered-down Republican tax-reform passage was
“one of the darkest . . . days in the long history of this Senate.” So,
basically, any time Chuck Schumer loses is the new darkest day in history.
Once Barrett’s confirmation became a reality, however,
Democrats began turning to the real problem. Originalism is the stick in the
spoke of progressivism. This crusade has the demagogues leading the idiots. The
former are people such as Massachusetts senator Ed Markey, who alleges
that “originalism is racist. Originalism is sexist. Originalism is homophobic.
Originalism is just a fancy word for discrimination.” The latter are the
minions who regurgitate this kind of vacuous talking point because they lack a
basic comprehension of legal philosophies or civic education that includes an
explainer on “amendments.”
None of which is to say the radicalized contemporary Left
has nothing to fear. Yesterday, Schumer warned: “A
warming planet. Workers falling behind. Dark money flooding politics. The curtailing
of the right to choose. The limiting of voting rights. Those are the
consequences of this nomination.”
What he means, of course, is that an originalist-majority
Court may slow progressive environmentalist policies that undermine personal
freedom and local sovereignty. He means that the Court may make it more
difficult for Democrats to adopt policies that compel workers to join and fund
unions and chip away at the Janus
decision. He means lawmakers may not be able continue gnawing at Citizens
United and weakening First Amendment protections. He means that
unlimited third-trimester abortions on demand and funded by the state might be
in trouble, that attacks on religious freedom might be blunted, and that states
may be obligated to follow their own laws on Election Day rather than concoct
rules as they go along.
Now, I have little doubt that a textualist court will let
down partisan Republicans as well. Originalists disagree with one another quite
often. But it is unlikely to overturn the traditional role of the state in
American life. None of which means that liberals have to lose, only that to
win, they’ll have to do so on the Constitution’s terms. The problem is that
many would rather destroy it than do so. That’s what this debate is about. The
rest is just noise.
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