ALLOW ME to start with a disclaimer. I am a lifelong Republican, voting for every Republican presidential candidate since Richard Nixon, with the exception of 2016 (the reason for that aberration is not important to my present thesis).
No small part of my voting philosophy has centered on my preference for conservative judges. And I should explain what I mean by that. A “conservative” judge is not one who shares standard conservative viewpoints on the hot-button social agenda items of the day (abortion, gay marriage, gun rights, fill-in-the-blank). To the contrary, judicial conservativism is a reasoned rejection of furthering personal agendas through the power of the courts. It sees the judicial role not as declaring whether legislation is wise or foolish, moral or immoral, but only declaring whether legislation is constitutionally permissible.
Chief Justice John Roberts’ 2012 majority opinion in National Federation of Independent Business v Sebelius, upholding the Affordable Care Act, puts it well: “We do not consider whether the act embodies sound policies. That judgment is entrusted to the nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”
I applaud this approach. A conservative justice’s personal views as to whether there ought to be a constitutional right to abort a fetus, to marry within one’s gender, or anything else is simply irrelevant to the question of whether there is such a right in the Constitution already.
If her views were relevant — as every Democratic senator’s questioning of Judge Amy Coney Barrett thus far has tried to paint them — then we are converting unelected lifetime appointees into policy makers, and I fear for our democracy.
Barrett’s testimony before the Judiciary Committee thus far suggests that she agrees. In ordinary times, I might welcome her appointment to the high court.
But these are not ordinary times. We have a president who holds no deep-seated moral objections to abortion (or to much else, from what I can see) and is using the Barrett appointment as a matter of political expediency, nominating a justice on the court who will vote to overturn Roe v. Wade in an effort to draw in the Catholic and Evangelical vote.
We have a president whose legal challenge to Obamacare panders to his base, expressly using the Barrett appointment as a means to get a deciding vote on the Supreme Court to strike it down.
We have a president behind in the polls, laying the groundwork for a challenge to the validity of the upcoming election results and publicly announcing that he needs the empty seat on the court filled in order to win that challenge.
I find this troubling. With the nation so polarized over so many issues, injecting what will, thanks entirely to presidential rhetoric on the matter, inevitably appear to the public as a national referendum on abortion, on Obamacare and on the sanctity of the ballot box, can only throw fuel on the fire. It would have been better to defer any Supreme Court nomination until after the upcoming election.
As Justice Joseph Story, among the most eminent jurists our country has ever known, noted in his 1834 treatise A Brief Exposition of the Constitution of the United States:
“The power of appointment, one of the most important and delicate in a republican government, is next provided for. Upon its fair and honest exercise must, in a great measure, depend the vigor, the public virtue, and even the safety of the government. If it shall ever be wielded by any executive exclusively to gratify his own ambition or resentment, to satisfy his own personal favorites or to carry his own political measures, and still more if it shall ever interfere with the freedom of elections by the people, or suppress the honest expression of opinion and judgment by voters, it will become one of the most dangerous and corrupt engines to destroy private independence and public virtue which can assail the Republic.”
That is where we are. Senators Susan Collins and Lisa Murkowski know it. Perhaps a few more Republican senators will recognize it, and exhibit the same courage that John McCain did when casting a deciding thumbs-down vote on legislation to overturn the Affordable Care Act. He knew that the time was not ripe for such a repeal, and put the interests of his country over those of his party.
Does such courage still grace the halls of the U.S. Senate? I hope so. We will know soon enough.