Ben Shapiro on Amy Coney Barret

Graham Hill's picture
Submitted by Graham Hill on Wed, 2020-10-14 21:16

There is one fundamental divide, inter alia, in US politics between means and ends which specifically turns on process or means for the US Supreme Court. For Democrats everything is political.

Ben Shapiro in this excellent piece in Town Hall clearly identifies this divide when talking about Amy Coney Barret's views on the judiciary's role. There may be a lesson for us in New Zealand as we are cofronted wiht religious left wing views which are highly moral and come cahrged with potential Jaconanism of conformity. I have interpolated some comments into the text.

The Rule of Law is invaulable but that does not mean, as Niall Ferguson says The Great Degeneration 2012, that the Rule of Law is the rule of lawyers. As a former lawyer I have been witness to the utter failure of the rule of law and humn rights standards by a group of provincial lawyers.

It is noteworthy that the Democrats are inundated with lawyers leading, in my view, to an over scutiny of words, an obsession of resolving everything through hearings (e.g. impeachment but not winning an election at the ballot box) and deploying law fare. For example: The Democrats are alleged to be gearing up to challenge district/state vote results in Court. The Senate Hearing for Judge Barret has had some Democrat members criticise her use of the term "sexual preferences."

"They [progressives i.e. Democrats] fumed that Barrett refuses to pledge fealty to their political priorities. They fumed that Barrett has stated that the role of the judiciary is not to achieve moral ends but to enforce the law. They fumed that Barrett had the temerity to state that "courts are not designed to solve every problem or right every wrong in our public life," that "the policy decisions and value judgments of government must be made by the political branches" and that she has done her utmost to "reach the result required by the law," whatever her preferences might be.

That's because, in the view of the political left, the court ought to be merely another weapon in its political arsenal. Conservatives see the judiciary as Alexander Hamilton characterized it in "Federalist No. 78": as the "least dangerous" branch, capable of "neither force nor will, but merely judgment," an institution whose legitimacy rests on its unwillingness to "exercise WILL instead of JUDGMENT." Liberals see the court as a super-legislature, designed to act as moral arbiters on behalf of progressive values. That's why former President Barack Obama stated that judges ought to be selected for the quality of "empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes." [Outcomes should be read as 'progressive' outcomes. GH]

Critical legal theorists have suggested that conservatives are fibbing -- that their view of the judiciary as relegated to judgment alone is merely cover for the reinforcement of their political priorities. But the data suggest otherwise. During the 2019 Supreme Court term, for example, out of some 67 decisions, the four justices appointed by Democrats voted together 51 times; Republican appointees only voted together 37 times. As Ilya Shapiro of the Cato Institute has pointed out, "it's the (Ruth Bader) Ginsburg Four that represent a bloc geared toward progressive policy outcomes." Republican appointees, in other words, are politically heterodox significantly more often than Democratic appointees. That's because, on a fundamental level, they take their job -- and the constitutional separation of powers -- seriously.

Democrats do not. That's why they see as the glories of the Supreme Court those moments in which the Supreme Court seized power on behalf of progressive ideals. [When the legislative process would not have garnered a majority. GH] Roe v. Wade has become holy writ on the political left, specifically because it robbed the American people of their right to vote on the issue of abortion. Democrats see nothing but glory in Supreme Court justices seizing authority to protect abortion on behalf of defining "one's own concept of existence, of meaning, of the universe, and of the mystery of human life" (Planned Parenthood v. Casey, 1992). They see nothing but wonder in Supreme Court justices declaring that the judiciary has been delegated enforcement of "a charter protecting the right of all persons to enjoy liberty as we learn its meaning" (Obergefell v. Hodges, 2015). They see nothing but cause for celebration in the Supreme Court cramming down on the American people their own sense of our "evolving standards of decency" (Trop v. Dulles, 1958) or the importance of never-before-defined "emanations" and "penumbras" (Griswold v. Connecticut, 1965). They want the court to act as an oligarchy.

And they are angry that Barrett's nomination has moved the court away from that progressive, oligarchic rule. That's why they're threatening to pack the court -- because they wish to restore that oligarchy to power. And that's just another reason why, for all the talk about Donald Trump's threats to core American institutions, he can't hold a candle to even mainstream Democratic willingness to trash checks and balances on behalf of power.

Ben Shapiro writing on Town Hall:


Mr_Lineberry's picture

Needs to cut the horse feathers and stop stirring over the "Obergefell" decision.

He knows perfectly well it will never be overturned or even challenged, and that the dissenting justices said they were not actually opposed to two men marrying -as a concept - but on a couple of narrow constitutional principles.... (in short they said State legislatures should change their laws).

When he moves to Tennessee Shapiro may be surprised to learn the average "good old boy" doesn't give a toss if the two gay guys living down the street are married. Or have a child.

Ben needs to grow up.

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