http://www.washingtonexaminer.com/opinion/editorials/democrats-delegitimize-the-supreme-court-because-they-fear-losing-power-over-the-rest-of-us
Editorial
Washington Examiner
October 12, 2020
“It is a decision of the Supreme Court,” Rep. Nancy Pelosi said in 2005, speaking about the eminent domain ruling in Kelo v. New London. “If Congress wants to change it, it will require legislation of a level of a constitutional amendment. So this is almost as if God has spoken.”
This florid reverence for the high court ought not be lost on the reader, especially given where Pelosi and other Democrats find themselves today. As the Senate prepares to confirm President Trump’s third Supreme Court nominee, they have begun to say outright that the nomination and confirmation procedure outlined in the U.S. Constitution is illegitimate. In some cases, they are even insinuating that the court itself lacks legitimacy, for which outlandish claim the only visible justification is that they don’t like the direction it's going.
“I believe that the whole process has been illegitimate,” Senate Democratic Leader Chuck Schumer said with characteristic cynicism. But as the Washington Examiner's Noemie Emery pointed out last week, the word “illegitimate” is hard to apply to a process outlined as a routine matter within the Constitution, which states: “The President ... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court,” among others. Trump is president until January and has the lawful, legitimate power to appoint Amy Coney Barrett to the vacant seat on the Supreme Court. The Senate, controlled by an elected Republican majority, has the lawful, legitimate power to confirm Judge Barrett.
So there is, to coin a phrase, no legitimate question of legitimacy. Rather, the Democrats’ unpleasantness reflects their misperception or mischaracterization of the Supreme Court and its purpose. They have long viewed it as a legislative tribunal essential to their advancement of ideological aims. They see it as a supreme council to decide cultural issues in their favor when the public does not agree with them, and to block laws and policies they don’t like.
Yet in reality, their stated fears about what the nation will look like under a conservative court are provably false. The current Supreme Court, with two of Trump’s appointees on it already, was supposed to strike down Roe v. Wade, overturn Obamacare, and trample the rights of gay and transgender people.
The funny thing about constitutionalist judges, or one should say the essential thing, is that their philosophy impels them to uphold the written law and the Constitution even when it goes against their personal convictions. Roe will someday probably be overturned, but it will be because, as even the late Ruth Bader Ginsburg observed, it is bad law, poorly argued, hewing not to the Constitution but to political fashion.
The late Justice Antonin Scalia was an ardent opponent of flag-burning, and he expressed that opinion more than once in public. “If it were up to me," Scalia once said, “I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag.” But he also provided his vote to help strike down state and federal laws banning flag-burning. He was not being hypocritical or inconsistent — rather, he viewed it as his role to uphold the law, not to impose his personal preferences.
Law is made with democratic accountability. Legislators face regular elections, and their collective will is taken as representative of election outcomes.
Democrats view the court entirely differently, as an avenue for end-runs around democratic governance. As long as they espouse this view and put it into practice, they will continue to undermine the Supreme Court’s legitimacy, as they have done in repeated confirmation hearings ever since the destruction of Judge Robert Bork in 1987 and the traducing of Justice Clarence Thomas in 1991.
As hearings begin for Barrett’s confirmation, voters must bear in mind how Democrats conducted themselves in the hearings for Justice Brett Kavanaugh’s nomination. Vice presidential nominee Kamala Harris, in particular, should be remembered for a vicious lie she knowingly attempted to plant about Kavanaugh having unethical, secret conversations with one of Trump’s private attorneys. Her dishonest bluff was exposed but subsequently forgotten amid the far more lurid, uncorroborated allegations that Democrats promoted in their failed attempt to torpedo Kavanaugh’s nomination.
In short, Democrats’ fears of a Supreme Court with a textualist majority merely reflect the darkness in their own hearts. Such judges have already proven their faithfulness to the law above all else. The thing at stake, which has the Democrats in such a frenzy, is their determination above all to use every lever of government to exercise power — courts, Congress, and the presidency — to impose their will on everybody else.
The essential American soul is hard, isolate, stoic, and a killer. It has never yet melted. ~ D.H. Lawrence
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