Tuesday, October 13, 2020

Part I

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The Issues Revealed—On the First Day of the Confirmation Hearings the Big Issues Arise, in the Senate and in the Press

Well, the big show is underway, it got started yesterday morning, the beginning of the Senate confirmation process for President Trump’s nominee to the Supreme Court, Judge Amy Coney Barrett. It got started just about as you would have expected but, of course, in the context of the COVID-19 pandemic, things are just a little bit different.

That point was made by vice presidential nominee for the Democratic Party, Kamala Harris, who decided in her opening comments to go at this. She says that the hearing should have been postponed because of COVID-19. She says, and I quote, “This committee has ignored common sense request to keep people safe, including not requiring testing for all members despite a coronavirus outbreak among senators of this very committee.”

Now interestingly, Senator Harris made her comments from her Senate office, she made them remotely, she was not in the room. Similarly, Texas Republican Senator, Ted Cruz, did the same. You’re looking at the fact that senators were given a choice, are you going to be in the room or are you not going to be in the room? It’s also interesting that in pressing this case Kamala Harris basically had to acknowledge, implicitly, the fact that the Democratic members of the Senate would be glad to gather in order to have hearings about a proposal that they would support but they are opposed to gathering in order to consider any proposal they do not support, and they emphatically do not support the nomination of Judge Amy Coney Barrett to the Supreme court.

That point was made by the chairman of the committee, Republican Lindsey Graham of South Carolina. In some of the most honest statements made before that committee in a long time, Chairman Graham said, “This is probably not about persuading each other unless something really dramatic happens, all the Republicans will vote yes, all the Democrats will vote no.” Now, you just might have the impulse to try to fast forward through the hearings, therefore, let’s just get to the vote and get on with it, but there are three reasons why that won’t happen.

Number one, this is a procedural government. We are a government of laws, we have processes that we follow. The structures of our experiment and constitutional self-government require the very kind of hearings that we’re looking at right now. You might not like them, you might not want them to last long, but you really do need to have them. Secondly, politicians aren’t going to go without them. They may complain about the fact they’re being held but they’re not going to give up the precious airtime and national attention they would get by means of the hearings.

There’s a third reason and this one is actually implicit in Chairman Graham’s statement. He said, “This is probably not about persuading each other unless something really dramatic happens.” Now, what is he talking about there? Well, he’s talking about the fact that the opposition to a nominee such as this actually wants to have the hearings because it just might be that in the course of the hearings something dispositive might come up, something that would prevent the nomination. They don’t know what it is right now but they’re looking for it.

If you’re wondering what that looks like, just consider the confirmation hearings for now Justice Brett Kavanaugh, that’s exactly what that looks like. One other angle on this, the Chairman, Senator Graham did say this is probably not about persuading each other but that’s not to say that it’s not about persuasion. In this case, you have senators trying to persuade their own supporters that they are doing the right thing.

The Democrats would be playing left, the Republicans would be playing right. The Democrats are going to be playing away from the nominee, the Republicans will be playing their hand towards the nominee, and both trying to say to their base of voters, “I’m in this for you. I’m doing this for you.” In the course of all of this some really fascinating things have happened already in the lead-up to the confirmation hearings and even in yesterday’s confirmation hearings that are of course continuing today and will continue.

For one thing, some very basic constitutional issues are actually now rising to the fore, you’ve got people talking about things they don’t normally talk about. The American people are actually talking about the Supreme Court and the Constitution in a way that they would not normally have such a conversation.

Now, there’s something also interesting in this, and in my conversation with Ilya Shapiro on Thinking In Public, released yesterday, he makes the point that social scientists have affirmed that if you look at recent presidential election cycles, especially among Republican voters, there’s an amazing amount of sophistication in knowing about the Supreme Court, the interpretation of the Constitution, and for good reason.

Conservatives have been trying to overcome the court’s usurpation of the legislative process and, in order to do that, even Republican voters are now talking about constitutional issues, which would have been hardly imaginable, say, a half century ago, but we’re not now living a half century ago, we’re right now. In 2020, these issues are front and center. Now, I want to point just to several things that I think are illustrative, they’re just incredibly interesting in the midst of this.

One comes from a series of letters to the editor to the Los Angeles Times. Now, these letters are responding to an article by one of the most liberal constitutional scholars in the United States. Indeed, it’s difficult to exaggerate just how liberal Erwin Chemerinsky is. He has been before the Supreme Court, he is himself a constitutional scholar. He is also the Dean of the Law School of the University of California at Berkeley, that tells you something.

He’s written several opinion pieces about Judge Barrett’s nomination already but he interrupted his consideration of Judge Barrett in order to point to his outrage at comments made, as we discussed on the briefing days ago, in relation to the question of same-sex marriage by Justices Samuel Alito and Clarence Thomas. The headline of his article in the Los Angeles Times, “The latest threat to same-sex marriage–Clarence Thomas.”

Now, Chemerinsky is actually saying that what we’re looking at here is what he says was an unexpected challenge to the legitimacy of the Obergefell decision in 2015, but who’s kidding whom here? When you’re talking about the Dean of the University of California at Berkeley Law School, you’re talking about a constitutional scholar of the rank of Erwin Chemerinsky, and I say that even though he and I would disagree on just about everything about constitutional law.

The fact is, it’s not really believable when he writes in this column in the Los Angeles Times, “Until reading Thomas on Monday, I had naively assumed that the issue of marriage equality between gays and lesbians had been firmly settled by the court.” Well, I suppose it’s supposed to be a mic drop there, except it’s not. I can’t take that sentence seriously. This is a man who knows fully well what’s at stake in the argument over same-sex marriage and he knows fully well that that five/four decision came about simply by means of an invented right by the majority of the court in that decision, and he knows the debate isn’t over.

Now, you’re also talking about the side that has been arguing that the 1973 Roe v. Wade decision should have settled the issue of abortion. They thought they had settled the issue and the nation would move on. Not so fast, not even close, and there we’re talking about almost 50 years, much less just 2015, just five years ago. Nonetheless, Dean Chemerinsky raises the point and he raises the issue that Justices Alito and Thomas spoke, as we discussed on the briefing days ago, so critically of the Obergefell decision and its inevitable compromise of religious liberty.

He then went on to warn that there is an LGBTQ rights case coming before the court quickly, and we’ve talked about that as well, that is Fulton versus Catholic Social Services. That’s the question that gets down to whether or not Philadelphia can disqualify a Catholic ministry there involved in adoption and foster care simply because, following its own Catholic convictions, it serves only heterosexually married couples.

It’s a big religious liberty issue. Dean Chemerinsky goes on to say that if Judge Barrett is confirmed to the Supreme Court he expects that she will be in the majority in ruling “to protect the right to discriminate.” Now, there you see how he frames the issue. In other words, she would be a crucial sixth likely vote to protect religious liberty. You can see how this issue is framed. It just depends upon which right you see as most fundamental, whether that’s religious liberty or these newly invented sexual liberties.

That then takes me back to the letter. I said that all this is prompted by a series of letters to the editor about Chemerinsky’s article and it’s because the very last of the letters to the editor published in this series is by a man who identifies himself as being an attorney, a black man, and gay. He asked this question and this is what’s so interesting. He closes his letter by asking this question. “How can minorities be protected from the tyranny of the majority if the Constitution is so pliable that fundamental rights are easily changed based on the religious beliefs of a justice reading the Constitution?”

That’s a really good question. It’s a smart question, the kind of question that we should actually consider. What’s behind that question is the fact of the Obergefell decision in 2015. Here this man is protesting any challenge to that decision, just five years old, because in his view the only way that minorities can be protected from the tyranny of the majority is if the Constitution is to assert fundamental rights that can’t be, to use his words, “easily changed based upon the beliefs of a justice reading the Constitution.”

Actually, if you take his question at face value, let’s do that, it raises far bigger questions about the Obergefell decision, legalizing same-sex marriage, than it does about any challenge to it. Because, after all, he uses the term fundamental rights and that gets us to a big issue that you’re going to be hearing about in the Barrett confirmation hearings. What in the world is the difference between a right and a fundamental right?

Well, legally and constitutionally, there’s a big difference. A fundamental right is one that is beyond scrutiny. In other words, the court isn’t asking is this really a right or not? Now, our Constitution actually enumerates specific rights, just think about the Bill of Rights. Now, clearly abortion’s not in there, not even mentioned, not even imaginable. So-called same-sex marriage isn’t in there, not envisioned, not even imaginable, so how did abortion and same-sex marriage get written into America’s constitutional tradition as so-called fundamental rights? That is, they should be rights beyond scrutiny, any kind of limitation should face what’s called strict scrutiny.

That is, the court should look and, in most cases, the rights should simply reign supreme. How in the world did that happen? Well, it happened because a majority of justices invented a new right they then declared to be a fundamental right. That is, again, requiring the strictest of scrutiny beyond any kind of fundamental question. Now, reading this man’s letter I accept that he means it exactly as he writes it and he honestly believes what he’s writing here.

Somehow, he seems to believe that five years ago the court acted rightly in declaring a newly invented fundamental right, but that justices of the Supreme Court who questioned that would be acting illegitimately. That’s a very interesting issue, that’s something we need to watch. It’s such a form of legal progressivism that it says that once the court invents a right it can’t be un-invented, even in part. Now, that explains why the pro-abortion side keeps going back to Roe v. Wade 1973, Roe v. Wade 1973, because that’s when history is supposed to have changed, permanently, in one direction, can’t be reversed.

That’s why any infringement upon abortion whatsoever appears to be, to at least the logic of those who have such a progressivist vision of the court and the constitution going backwards in history. Now, the same thing is true of same-sex marriage. On the left, it is assumed history has moved on, there is no turning back.

Part II

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Watch the Language: What’s the Difference Between a Right and a Fundamental Right?

Now, the LA Times, the same newspaper, has run an opinion piece by Harry Littmann. The title is, “The Supreme court is already pulling us back to the future.” You see what I mean there? There you have it, right in the headline of this article, the explicit claim that any kind of conservative move is going backwards in history, the court is “already pulling us back to the future.”

Littmann writes, “It’s no doubt true that the right to marry, no matter your sexual preferences, chafes certain sincere religious adherence, but why should it be their objections to the practices of others that take constitutional priority?” He goes on to ask these questions because what’s assumed is there is a new right, deal with it. History moves on, the court has decided it. Of course, here’s the point that conservatives need to come back to. If the court can decide it then a court can un-decide it. If the fundamental basis of a fundamental right is just having the right math on the court, then that math can change.

I think it’s very fair to say that the Los Angeles Times, in terms of the reporters, the opinion writers, the editors, and presumably, they seem to believe, their readers, are pretty much absolutely convinced of something like a Hegelian unfolding of history towards inevitable liberal progress.

If you’re looking at it from their perspective, then the very existence of conservatives in this country is something that requires some kind of scientific explanation. Where did these people come from and why won’t they just shut up and stay off the courts? Other evidence of that is in the same newspaper, they just can’t stop themselves. In this case, senior editorial writer, Michael McGough, offers a piece with a headline, “Senators must ask Barrett about the same-sex marriage precedent.”

Wow, there’s the precedent again. Now, this question goes back, of course, in the liberal litany to Roe v. Wade 1973, Obergefell 2015, but other cases as well in which they say the decision must stand, stare decisis. There can be no questioning of the precedent. The precedent establishes the direction of history, people have made decisions based upon this precedent, this precedent has brought about a moral revolution, we won’t tolerate it being reversed.

In this case, McGough writes that senators should ask Barrett, that is, Judge Barrett, about the same sex marriage precedent as well as the Roe precedent. So far as I’m concerned, yes, they should ask the question, she’ll answer it the same way. Here’s something else, and this just explodes into this entire picture, watch for it during the confirmation hearings. Judge Barrett in 2013 wrote a legal journal article that I’ve read every single word, it’s an excellent article, 2013.

In it she says these words, “I tend to agree with those who say that a justice’s duty is to the constitution and that it is thus more legitimate for her to enforce her best understanding of the constitution rather than a precedent she thinks clearly in conflict with it.” That’s a statement of the kind of conservative jurisprudence that we already know Judge Barrett represents.

When it comes to precedent she says, “It’s the constitution that rules. Precedent isn’t unimportant but we are a government of laws, not of judges.” That means that the constitution rules. If a decision is in conflict with the constitution, it needs to be reversed. Now, footnote number one. We need to note that both liberals and conservatives in the United States actually believe this, they just have a different list of cases and decisions that they demand to be reversed.

Conservatives demand the reversal of Roe v. Wade and Obergefell and other kinds of decisions, some of them rather technical, having to do with administrative law policy and all the rest. Let’s just say Roe and Obergefell 1973, 2015, change those precedents, wrongly decided. Now you have so many people saying the precedents have to be respected. When it comes to a question between the Constitution and the precedent, go with the precedent.

Except you don’t hear the left making that argument, the very same argument they’re making right now, when it comes to Supreme Court decisions such as Heller that found an individual right to own handguns or, for that matter, Citizens United that has to do with campaign financing. Now, without talking about those cases, the fact is nobody likes cases that they believe were decided wrongly.

What I find absolutely fascinating, and what we need to be listening for during these hearings, is any contrary argument, actually, when it comes to the argument that was made by Judge Barrett, then Professor Barrett, when she says, “I agree with those who say that a justice’s duty is to the Constitution,” and that her best understanding of the constitution, rather than a precedent she thinks is in conflict should rule. Let’s just ask the question. What would be the alternative to that? I hope that at least some Republican senator on the judiciary committee will ask that question, ask that question in such a way that it rebounds on others on the committee.

What would be the alternative to saying that if there’s a precedent that is unconstitutional the Constitution should rule? Well, the alternative is one we need to force into the open honestly. The alternative is saying we prefer a government by judges rather than a government by the Constitution. We may say that we look to the United States as a government of laws and not of men, you could say men and women, but when it comes to the issues that we consider most important, no, if we have a majority of judges we want the judges to decide.

Again, you just look at this argument, you would think this is unassailable. Just go back to the Federalist Papers. Just go back to the founding vision of this country. Just go back to the ratification of the Constitution. Just imagine that someone had made the argument, “You know, we’re going to have a Supreme Court, we’re going to have a federal judiciary, and if those judges or some majority of judges thinks that the Constitution needs to be corrected by them as judges, let’s just let them do it.”

You know good and well the Constitution would never have been ratified, that argument would have been chased out of town. It’s being made right now, often implicitly rather than explicitly. It’s being made by those who pick up, for instance, Judge Barrett’s comment, right here, about the Constitution ruling and say, “That is a disrespect for precedent.” No, it’s respect for the Constitution. That’s a crucial difference, we need to make that clear.

Part III

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Who Gets to Decide Political Issues? The Legislature or the Supreme Court? Why the Platform Policies of the Left Depend on Judicial Activism

Next, a third major issue related to all this comes prompted by an article in the Washington Post entitled, “Congress can limit the court’s influence by doing its job.” It’s by a rather liberal columnist, Jennifer Rubin.

I want to say, conservatives in this case agree with her whole heartedly. Congress has a responsibility. It has not fulfilled that responsibility and the courts should not take up that responsibility and become a super legislature. That’s not exactly what she says but that’s what I’m going to say. Here’s what she says. She says that if you’re looking at threats to Roe and Obergefell and other liberal court decisions, she says the way around that just might be to eliminate the filibuster in the senate and have the United States Congress, a Democratic majority in the house, and what they hope will be a Democratic majority in the Senate, go ahead and make Roe legislation.

Now, we talked about the fact that Joe Biden, the Democratic nominee, said right out loud that’s what should happen. He said that in the course of the campaign already, but what’s the point? Well, the point is this. Congress would indeed have the authority to legislate on these questions. Now, let me read to you from Jennifer Rubin’s article. She says this. “Instead, the first step Congress should take is — get ready! — to legislate. It can pass a federal statute (likely to require the demise of the filibuster if it cannot be accomplished in a reconciliation bill),” she’s writing here, “to codify Roe.”

Then she goes on to say, “And, if lawmakers see fit, stripping out the Hyde amendment that limits federally funded abortions to cases of rape, incest or cases in which the life of the mother is at risk. In other words,” Rubin writes, “the federal government can decide not only to protect the right to seek an abortion but also to make abortions more accessible to poor women. We can argue whether that is a good or bad policy, but no one,” she says, “can argue that Congress has no prerogative to address the issue. Nor can anyone say,” she writes, “that Congress can’t, say, pass a Defense of All Marriages Act, which would secure same-sex marriages.”

Now, here’s where I agree with her, conservatives have been saying this for decades now. Yes, Congress could do those things but you know what? If Congress does those things, every single person who votes for them is going to have to live with that vote and voters can say, “Out with you,” in disagreement with that position. That’s why Congress hasn’t done this. A Democratic majority has existed for most of the years in Congress since Roe v. Wade in both houses, but a Democratic Congress didn’t move forward to codify Roe v. Wade because those members of Congress and senators would have to go back and get reelected, having made that vote.

Here’s the point. It’s interesting that the left now comes up with the fact that Congress, maybe if they’d read the constitution they would have thought of this earlier, is actually given the responsibility to legislate, but let’s ask the question. This also came up in comments made by Texas Senator, Ted Cruz, during the hearings yesterday. The issue comes up, why should legislators deal with these issues rather than judges? Ted Cruz made the point, it is because legislators have to face the voters again and again and again, they have to own their decisions and be responsible for them.

The effort by so many in this country, particularly on the left, overwhelmingly on the left, to say we want judges to decide this means they want people who will never, by constitutional definition, face voters again. That is an incredible threat to democracy. Now, there’s going to be a lot more to talk about this week but these confirmation hearings are simply massive and actually they’re turning out to be more revealing than even the last two cycles of confirmation hearings. Basic issues of truth, and justice, and the Constitution, even the role of a government, the legislature, the judiciary, the executive, all that is now coming to the fore.

We dare not miss this opportunity. This is a very rare moment in American politics and it wouldn’t have happened if in the context of this presidential election, with the future of the Senate also at stake, President Trump hadn’t made this appointment, this particular appointment, this nomination, and if the Republicans in the Senate weren’t willing to push forward in having these hearings. All of this has created the most unusual crucible in which some of the most important questions of recent decades have come to the fore. You don’t want to miss these questions nor do I.