Justice Barrett

Amy Coney Barrett was confirmed as a Supreme Court justice on Monday and sworn in almost immediately. Once the Republicans decided that the rules against Barack Obama's nomination of Merrick Garland to fill Antonin Scalia's seat in a presidential election year didn't apply here because they had the Presidency as well as the Senate, it was a foregone conclusion.  All the Democrats could do was play up threats to the the Affordable Care Act and raise money off them.

Even if the Democrats win big on Tuesday, we'll have to deal with a Court at least as rigidly conservative as the one Chief Justice Charles Evans Hughes presided over when Franklin Roosevelt became President in 1933. That Court, of course, struck down several New Deal initiatives, the main result of which was to prevent us from becoming a European-style social democracy like France. Expect similar blows against the Affordable Care Act, numerous other public amenities, and civil rights initiatives if the Democrats are in control of the elected braches of the federal government in January.

This is where the rubber meets the road. A Democratic Congress will have to be very careful in how it drafts bills it passes with a President Biden's signature. As I understand the late Antonin Scalia's explanation of the doctrine of originalism, the point of the judiciary is merely to interpret the laws based on the text of the Constitution and nothing more, and if you see something that should be remedied and corrected through legal means, Congress should not rely on justices to legislate from the bench; rather, it should . . . pass a law. Now a Democratic Congress will have to come up with language that advances a Biden administration's interests without creating language running afoul of strict constructionism.

If there is a Biden administration. The 6-3 conservative majority may rule in favor of Trump's efforts to overturn the results of the presidential election in several swing states should Biden win.

Of course, things wouldn't have all that much been better if Hillary Clinton had been President these past four years. Those who thought she would have secured a liberal majority on the court by appointing the replacements for both Scalia and for Ruth Bader Ginsburg, who would have retired in 2017 had Hillary won the election (which of course, was never, ever going to happen), forget that Senate Republicans - including the late and now-sainted John McCain - threatened to block all of her appointments to the federal judiciary and would likely have prevented her from appointing a more liberal-leaning justice to the Supreme Court as well.

It's just this sort of partisan bickering that has divided Americans to the point where we can look forward to more division at home and derision from abroad as we limp our way into the 2020s. No matter who wins on Tuesday. 😢

The Barrett Hearings

The Senate hearings for Amy Coney Barrett for a seat on the Supreme Court can be summed up like this:

Senate Democrats try to grill her on cases that could come before the Court and try to discern if her vote and her originalist judicial theory would set back decades of social progress by rolling back health care, abortion rights, and voting rights - including a vote on a possible case that could help Trump overturn the election results if he loses.  is Barrett's originalist judicial theory leads her to help reverse them.  She doesn't flinch.

Senate Republicans praise her qualifications and throw her softball questions.  She smiles and offers polite happy talk. Senate Democrats flinch.

And we know she's going to get confirm and stick it to the little guy because Republicans have the votes.

These hearings have all the predictability of instant coffee.  So, alas, does the outcome of her nomination.  So, obviously, I haven't wasted time watching these hearings.  I'm more annoyed that the cable news channels have devoted all of their time to them without reporting anything else. 

As for my opinion as to whether or not Democrats should expand the Supreme Court and add lower judgeships should they win the Senate and the White House . . . yes, absolutely they should.  It wouldn't be packing the federal court system; rather, it would be balancing the court system to counter the Republican court packing of the past four years! 

The Notorious ACB

 Be very afraid of Amy Coney Barrett.

She has impeccable credentials as a judge and an stellar record for intellectually sound opinions.  And she's a reactionary.  But she is not a Trojan horse for conservatives who wish to politicize the Supreme Court the way Ginsburg was (Douglas Ginsburg, not the former Joan Ruth Bader).  She is a political appointee with her ideas already in place from her own reasoning.

Maybe as a Supreme Court justice, she wouldn't necessarily rule in favor of Trump if he tries to sue his way to a second term.  But she would almost certainly rule against Roe v. Wade, and her originalist views would definitely mean the end of the Affordable Care Act.  And she's all but certain to get on the Court despite majority public opposition just as Trump could be "re-elected" despite majority public opposition.

Be very afraid indeed.  And vote.