Saturday, October 24, 2020

Judge (Justice) Amy Coney Barrett and Liberal Despair

Judge Amy Coney Barrett moved one step closer to being confirmed as the newest Associate Justice on the Supreme Court. The Democrats on the Judiciary Committee claimed that the entire process was illegitimate and boycotted the final Committee vote. The Democrats argued that Committee rules required at least two members of the minority party to participate in order to have a quorum and conduct business. 

The Republicans said they didn't see it that way and proceeded to vote anyway. The result was that the vote was 12-0 to move Judge Barrett's nomination to the full Senate for a confirmation vote. Barrett could thus be confirmed as soon as Monday, barring some sort of last minute unforeseen stumble. Maybe someone will come out of the woodwork on Saturday or Sunday to claim that in the third grade Judge Barrett kissed him against his will and gave him cooties. That seems to be quite unlikely to say the least.

Barrett's impending confirmation makes the Democrats so mad that they could just spit. They have no way to stop Barrett's confirmation. They have also realized belatedly that the Republicans, frustrated by what they've seen as liberal courts since at least the 60s if not before, have reached what they certainly hope will be the apotheosis of a multi-decade conservative effort to seize control of the courts back from liberal judges.

So, many liberals, angered and frightened by the idea of 6-3 or 5-4 conservative Supreme Court decisions for the forseeable future and in particular the idea of a decision that overturns or further limits Roe v. Wade have floated ideas to limit the power of this reinvigorated conservative court. Some of these are silly or unconstitutional and just won't happen. Others are viable but come with their own risks.

Ignore Court Rulings

People who don't like the fact that small states get the same number of votes as large states in our system constantly point out that the Senate is unrepresentative of actual voters by population. To them this means that justices confirmed in large part by Senators who do not represent the majority of the US population are not legitimate. Also like everyone else such people have their favorite SC decisions and legislative policy decisions, many of which could be changed if the right case reaches the Supreme Court at the right time. So they argue that if the Supreme Court rules the "wrong way", the people and/or the other branches should just ignore it. To paraphrase Andrew Jackson's possibly apocryphal statement, "The Supreme Court has ruled. Now let them enforce it." Or to paraphrase a supposed Stalin quote, "How many troops does the Supreme Court have again?"

I think this is shortsighted and rather dangerous. If you argue that you don't have to obey Supreme Court rulings, you have to accept that the other side needn't do so either. While it may make some people in reliably blue states happy to ignore adverse Supreme Court rulings on immigrant rights, corporate speech, or environmental regulations, they would of course be upset to learn that people in thoroughly red states were telling the Supreme Court to go kick rocks on decisions they didn't like on abortion rights, gay marriages, gun restrictions, or anti-discrimination law. Either everyone obeys all SC rulings or no one obeys any SC rulings.

Pack The Court

Some people haven't gotten over the fact that Senate Majority Leader Mitch McConnell and his merry band of Republicans successfully blocked President Obama's choice of Merrick Garland to replace conservative intellectual icon and noted jerk Antonin Scalia. Garland didn't get an up or down vote in the Senate. Trump replaced Scalia with Gorsuch and has gone on to make two (?) other successful nominations to the Supreme Court as well as numerous other successful nominations to lower courts. Since people on the left tend to see McConnell's power move as mean (it was), illegal (it wasn't), unprecedented (it wasn't) and Trump's election as thoroughly illegitimate, many are also convinced that all of Trump's judges are illegitimate.  

They would like to impeach and remove them all. However since it would take a two thirds vote in the Senate to remove an impeached judge, removal is unlikely to occur. The next best move would be to add enough liberal judges to the Supreme Court to make the Court reliably liberal again, assuming that Biden wins election, and the Democrats take the Senate majority, which both appear likely now. A Democratic Senate majority would just have to eliminate the Senate filibuster. And we're off to the races.

The problem with that is that political majorities are never permanent. And the next time the Republicans had the Presidency and Senate, they would certainly seek to repay the Democrats in kind by adding even more Federalist Society approved judges to the Supreme Court, imposing English language laws, outlawing state gun restrictions, and writing all sorts of laws designed to do nothing more than troll the people who religiously read the New York Times opinion section. It wouldn't end. There is a live by the sword, die by the sword feel to all of this.  

What's the solution?

If as I suspect Trump loses the upcoming election, it will show that even mediocre empty suits like Biden and Harris can beat malicious echthroi such as Trump and Pence. So many arguments about needing to reject the Electoral College or throw out the Senate will wither. Temporarily. But the biggest thing that liberals need to do is just move. Rather than whine incessantly about how unfair it is that sparsely populated states that they don't like get two votes in the Senate, some of the liberals doing the complaining should move to those states. 

Liberals are heavily overrepresented in coastal states and cities. This packing is part of what allows Republicans to punch over their weight. In the same way that Texas, Georgia, and North Carolina either have become or are on the verge of becoming swing states because of migration from other states, we could and should see more people moving from safe liberal coastal redoubts to the South, West, and Midwest and thereby quickly changing political calculations across the board.  

I would remind people who are experiencing despair over what they see as an unacceptably conservative court for the next thirty years that no one knows the future. Who could have imagined that right-wing originalist/textualists such as Gorsuch and Roberts would read the 1964 Civil Rights Act in such a way as to include gays and transsexuals, two groups notedly not included in the law's text? And this time next year it's possible that conservatives might be cursing the (late) justices Alito or Thomas for not retiring under a Trump Administration when they had the chance.

In short, despair is no good. Even with a conservative court the future is unclear. And if liberal policies are as popular as they claim any adverse court rulings may be fixed with new laws or new amendments.

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