President Trump has nominated Amy Coney Barrett for an appointment to the Supreme Court. She is intelligent and well-qualified but will definitely tilt the court hard to the Right. There is little doubt of her confirmation by the Senate unless several Republican members pull an October surprise. Her Catholic faith should not be an issue, just as it should not be for a Muslim, Jewish or Buddhist nominee.
All the cries of foul play and hypocrisy aimed at Senate leaders will not mean a whit in the end. Yes, McConnell said in 2016 that it wasn't right for a sitting president to expect the Senate to confirm a Supreme Court nominee "so close" (10 months!) to an election. Yes, they changed their tune in 2020 but only because the Senate majority and president were of the same party. A minor difference to some, but a difference none the less. Basically, it boils down to who holds power. This year, as in 2016, Republicans are the Senate majority. That's what happens when you win more elections, which may be a painful lesson for Republicans this year. Maybe everything you could do is not necessarily what you should do. Payback is always in the wings.
Many on the liberal side of the political spectrum have not moved past the emotional trauma of losing Ginsburg, which has perhaps clouded their perspective. They will attempt a Quixotic mission to derail the nomination. Sadly, they will succeed only in fanning the flames of partisanship, with nothing gained but continued disgust by the electorate. My suggestion is to let it go, ignore the distraction and move on to more pressing matters.
As an aside, I find it interesting that amidst all the calls made by the liberal side for packing the Supreme Court with additional justices or doing away with the filibuster in retaliation for McConnell's "unfairness," Joe Biden tries to shut down such ideas and is the voice of calm reason. So much for Biden being a puppet of the Left with no thoughts of his own.
Here's the thing about Supreme Court justices, though. You never really know how they will rule on a specific case. Trump's first appointee, Neil Gorsuch, has already drawn the ire of conservatives by protecting the LGBTQ community's rights. Chief Justice John Roberts, appointed during George W. Bush's term, joined more liberal members on the Court in preserving Obama-era protections for undocumented immigrant children and upholding the Affordable Care Act's individual mandate validity, provoking the wrath of Trump and other Republicans. Reagan's nominees, Sandra Day O'Connor and Anthony Kennedy became swing votes instead of reliable conservative puppets during their terms. Republican-appointed justices John Roberts and Neil Gorsuch may decide to re-balance the Court and move to the center. Perhaps the enormity of being the final word on all things judicial weighs on the Justices' minds. There isn't any other court above them to correct a "wrong" decision. Maybe the noble jurists become more than what they were before.
Historically, those appointed to the Supreme Court should be the most intelligent and learned jurists available. I won't get into who and who doesn't fit that description on the current court. Their appointment is for life, so they need not worry about pandering to any political party. They may not care how political leaders or voters feel about them while they are on the court, but you know darn well they want to be remembered favorably by future legal scholars. They want their cases debated in law schools for all time, held up proudly as protectors of the judicial process.
The American Constitution is a wondrous document. The Founders could not have conceived of all future precedents when forging this great work. They did provide a framework by which such decisions could be made based on the ideals of freedom, equality, justice, and pursuit of happiness, relying on the goodness, common sense, and intellect of future leaders.
A clear separation of powers keeps the Court in the role of judicial oversight and not in legislating law. A 6-3 conservative majority will undoubtedly have repercussions on future abortion rights cases, for example. Still, states have already weakened Roe v. Wade by passing laws restricting access or mandating cumbersome requirements for facilities to perform abortions. It is ironic to note that in 2006, with a Republican president and Congress, and a five-seat Republican-appointed majority on the Supreme Court, Roe remained intact. In 2007, the court upheld Gonzalez v. Carhart (the basis for the 2003 Federal Partial-Birth Abortion Ban Act), a clear pro-life victory. The court could have gone further but didn't, stating that "precedents we here assume to be controlling," which was an implicit acknowledgment of Roe. Neither did the Republican-led Congress pass legislation doing away entirely with abortion when it held the Congressional majority in 2003 -2007. Conservatives should probably look amongst their own as to the reason why.
A more conservative court will have ramifications on the Affordable Care Act's validity, prescription drug costs, religious freedoms, corporate liability and environmental regulation. And that's just what's being considered for this year and the next. Social conservatives now have the judicial means to address their most important issues, and I have no doubt they will proceed with little restraint. But, maybe everything they can do is not necessarily what they should do. Payback is always in the wings.
-- Devin Houston is the president/CEO of Houston Enzymes. Send comments or questions to [email protected] The opinions expressed are those of the author.