(updated and amended)†
Taking in all the drama and pending procedural battles over
the Amy Coney Barrett nomination I was struck by the numerous ironies that are
at work. Given that the background has grown rather complicated it's something
that few outlets bother to probe or pursue. And yet there's an interesting
story and both political factions come out looking pretty bad.
First there are the battles over parliamentary procedure in
the Senate-
It all began with the polarisation of the 1990's as
bipartisanship collapsed. Traditionally cloture (three-fifths or sixty votes in
the present senate) was used as a means to shut down the filibuster. In other
words to get a nominee through the process you needed sixty votes. At one time
super-majorities of a two-thirds (sixty-seven with the senate membership of
100) vote were required for certain types of legislation, to amend the senate's
parliamentary procedure or for approving cabinet appointees.
Reduced to three-fifths (or sixty) in the 1970's this cloture-arrangement
seemed to work for many decades. The idea was that for something really important
like a Cabinet post or a Supreme Court appointment there should be a minimum of
sixty votes which most of the time will require a degree of bipartisanship.
This will necessarily moderate the choices as an extremist won't be able to get
enough votes.
A precursor to the present trouble was the bitterness
surrounding the Robert Bork nomination in 1987. Bork was part of the then
nascent Originalist movement regarding the Constitution and at the time it was
considered extreme. Today it's perceived as a 'conservative' school of
Constitutional thought but in many respects this isn't the case. It's more of a
Right-wing attempt at revising Constitutional law and that's how many saw it.
Bork's nomination went down in flames and yet the lessons weren't forgotten. His
Federalist Society views have come to all but dominate the conservative
mainstream.*
The views are currently represented on the court by figures
like Clarence Thomas, Samuel Alito, Neil Gorsuch, and to some degree John
Roberts. Amy Coney Barrett is also cut from this same cloth.
Ironically Bork would have little chance if he were nominated
today. His views on the Second Amendment as being pertinent to state militias and
not individuals carrying assault weapons would immediately generate resistance
from the Right.
The polarisation of the 1990's and the sense that the GOP was
aggressively pushing the Originalist agenda of the Federalist society increased
tensions. Some of the related issues came up during the Clarence Thomas
nomination but obviously that's not what is remembered about that episode. His
public shaming of the Senate Judiciary Committee deflected actual judicial
concerns and rooted the opposition to him as being race-based. The ironies
surrounding the Thomas appointment are almost beyond words. He was basically
unqualified for the job and selected because he was one of very few Black judges
that adhered to a Right-wing judicial philosophy. He had to be Black because he
was replacing the retiring Thurgood Marshall, at that time the only Black
justice in the history of the court. Although Clarence Thomas was opposed in
principle to affirmative action and racial quotas, it was the enaction of those
very policies that put him on the court.
Entering the 2000's, the George W Bush administration
utilised lawyers from outlets such as Pat Robertson's Regent University. The
views and agendas of these lawyers were generating controversy not because they
were conservative per se but rather due to their novelty and their activism.
Some were caught up in the scandal surrounding the improper firing of US
Attorneys. The public may have forgotten this episode but the Senators on the
Judicial Committee have not.
This led to the Democrats blocking of Bush appointees. This
was countered by the various Evangelical-led 'Justice Sunday' conferences which
attempted to energise the Evangelical base and also push the envelope in terms
of what churches (as 501c3) entities could engage in as far as political
advocacy. This later dovetailed into 'Pulpit Freedom Sunday' events which commenced
during the 2008 presidential campaign.
During Obama's tenure the Senate Republicans became
recalcitrant and would not give his judicial appointees a vote. The ostensible
basis for the 'Justice Sunday' appeal was the Constitutional duty for the Senate
to give 'a simple up or down vote' but it didn't seem to apply when it came to
Obama appointees.**
The Republicans also broke with precedent in refusing to vote
on certain Obama appointees to executive branch agencies.
This led to Nevada senate leader Harry Reid employing an
extreme parliamentary tactic, the so-called Nuclear Option which no longer
required sixty votes (cloture) for Cabinet appointees and judicial nominees. A
simple fifty-one vote majority would be all that was needed. The practical
bi-partisan requirement had come to an end although the Reid Nuclear Option
excluded general legislation and Supreme Court nominees which could still be
filibustered. His break with precedent was narrow in scope but it wouldn't stay
that way.
Under Mitch McConnell's Republican leadership in 2017, the Senate
invoked the Nuclear Option once more and no longer required a sixty vote
cloture even for Supreme Court nominees. A mere fifty-one votes was all that
was needed in order to approve a nominated justice. This is why Amy Coney
Barrett will likely take her seat this fall. Before 2017 she wouldn't have had
a chance, especially with the election only weeks away. The Republicans would
not have been able to muster sixty votes.
Reid was warned that he was opening Pandora's Box and
succeeded by Mitch McConnell (a man with no moral compass or conscience), the
prediction has proven to be true. Bipartisanship has ended. It's raw
power-politics now and the Supreme Court has been completely politicised.
Some hope this will foment a change. The Court is in
desperate need of reform. There needs to be term limits, perhaps more justices
that every president gets to appoint on a rotation and a requirement for
unanimous verdicts. The 9-0 cases rarely make the news but they're fairly
common. When there's a glaring constitutional issue the justices often agree.
If this were a requirement for all their rulings, the spectrum of cases that
appear before them would narrow as would the nature of the questions that are
being considered. The court would reject far more cases or a failure to secure
a unanimous vote would send the cases back to the lower courts or the congress
where the legislators could fix the problem – rather than having deep
existential issues often being decided by one person in the 5-4 decisions. The
present system results in legislating from the bench. Judicial Review has been
turned into political power and the 'checks and balances' order has been turned
on its head as the Court is essentially unaccountable.
Speaking of Amy Coney Barrett it's also noteworthy that this
woman now championed by the Christian Right uses her maiden name albeit in
unhyphenated form. The fact that no one even brings this up demonstrates the
shift in Evangelical and 'Conservative' circles. In 1992 Hilary Clinton's
insistence on using Rodham-Clinton generated offense and opprobrium from the
Christian community. Obviously it's no longer an issue is it? In fact Barrett
who is viewed as a conservative woman by her supporters is in Biblical terms a
feminist. A previous generation would have been rather put off by her
nomination-acceptance speech referencing her 'supportive' (read submissive)
husband who apparently does a fair bit of the cooking in the house – and
perhaps other domestic duties? The truth is her parenting is not commensurate
with her Christian claims as she is not domestic but instead (by her own
admission) relies on hirelings. It's easy to be mother of the year (and care
for a 'special needs' child) when you have other people raise your kids while
you're out working.
There is an expectation that during the confirmation hearings
she will be attacked on religious grounds and that her affiliation with a (in
some respects conservative, in other respects ecumenical) Charismatic group
will be probed. Republicans want to make hay with this and stimulate their base
to vote as a counter to perceived hostility and the threat of Christian
persecution at the hands of an empowered Democratic administration. But it's
also clear the Democrats in the Senate are conscious of this and may for that
very reason choose to largely avoid the topic. The organisation purports to have
a semi-patriarchal or complementarian structure but is apparently blind to how
this undermined by the encouragement of career wives and mothers pouring their
energies into the extra-domestic and cultural sphere.
Coney Barrett will be questioned extensively regarding stare decisis or the question of
precedent and the role it plays in the law. Many would accuse Originalism of
denying the concept, as effectively willing to dismiss decades and centuries of
law and jurisprudence. It's a slippery question because in many cases they want
to appeal to precedent – when it's convenient. In fact their largely contrived
Originalist reading rests upon it as the terms and concepts used by the
Founders can only be understood by an appeal to both precedent and custom – the
English Common Law tradition.
As I've argued elsewhere Originalism doesn't stand. The
Constitution itself denies the premise as does the historical testimony of the
Founders. An examination of the Constitution and its deliberate vagueness in
certain parts reveals this as does the Amendment process and the general nebulous
nature of the unelaborated concepts found in the 10th Amendment and
other places. The fact that disputes arose within a generation of ratification
also disputes the Originalist claim. The Marshall Court's battles over Judicial
Review for example indicate the lack of consensus. The 'original' people that
had ratified the 'original' document were not in agreement as to its meaning.
Originalism appeals to Evangelicals because its approach echoes
certain exegetical methods used when studying the Scriptures. But the
Constitution is a legal document, not a revelation of Jesus Christ. While there
are legal and covenantal aspects to the Scriptures to be sure the analogy is a
poor one and such thinking has proven to be damaging both to the US
Constitution and to exegetical tendencies in some Christian circles.
Originalism necessarily must strike down many Amendments as
un-Constitutional even though by definition they are part of the Constitution
itself. The idea that an Amendment could be passed and then retracted also defeats
the premise and indeed I highly doubt Amy Coney Barrett will attempt to revive
the Slavery-rooted Three-Fifths Compromise when it comes to the census and the
number of congressional seats. I'm sure the Democrats will try and make
something of her position regarding the death penalty – her rejection of it is
not yet commonly known in Right-wing circles and her position is sure to come
into play on the court over questions surrounding the Eighth Amendment.
They will press her on stare
decisis but she will like her Originalist predecessors labour to evade the
question.
There's also a great irony surrounding the question of
privacy which is normally connected to the Fourth Amendment. During the
Obamacare debates the Republicans made much of the Constitutional 'right to
privacy' that your healthcare should be a private matter between you and your
doctor and the government should not intervene. Apparently it was fine for profit-motivated
insurance companies to intervene, deny care and countermand doctor's orders
(sometimes leading to death) but the government should not be allowed in the
process.***
The Republicans were suddenly very concerned about privacy
and government intrusion. A few people caught the irony here and it was thick.
This was one of the primary bases for Roe v. Wade which in
part argued that abortion was a private medical decision that was between a
patient and her doctor and the state should not intervene. In that instance
social conservatives mocked the idea of Constitutional privacy and some still
do. Rick Santorum stated publically that the government belongs in your bedroom
– and we know that if he had his way he would regulate behaviour, mandate a
Catholic view of family planning, and would engage in censorship and
suppression of materials that challenged such views. And at that point he would
have a hard time reconciling such views with the First Amendment itself. It's a
separate issue but it worth stating that some on the Right have actually moved
beyond the sphere of Classical Liberalism and have re-embraced forms of
Anti-Enlightenment Traditionalist Conservatism which along with
Throne-and-Altar ideology is incompatible with the ideals found in the US
Constitution. A strange position to take, especially for some who claim to be
Originalists! The waters are muddied as some of these same figures have played
fast and loose with Constitutional ideology, history and definitions. They have
sought to make the two compatible when they are in fact diametrically opposed.
Regarding the question of privacy, I do not say these things
to indicate any kind of support for Roe v. Wade. On the contrary as a Christian
I am solidly and necessarily against abortion even while I (like the apostles
and unlike modern Evangelicals) do not fret over the fact that pagans kill
their children. The irony here is that the Christian Right has driven itself
mad and has been compelled to embrace a series of self-serving contradictions and
myths in order to further its agenda. It has played no small role in
undermining the integrity of the law and politicising it as well. Their
manipulations, tactical scheming and political machinations have only
undermined their moral case and their integrity.
Finally it should also be noted that 5-4 cases are usually
those most open to reversal – functionally a judicial referendum, it's the
closest thing the Supreme Court has to an appeal. In other words a 5-4 decision
suggests a closely divided court and that the Constitutional issues are less
than clear. A 9-0 case has little chance of being reversed in the future. Roe
v. Wade was a 7-2 ruling which would not be normally be considered for reversal
but it's not unknown. The Dred Scott case immediately comes to mind. Likewise
Plessy v. Ferguson was a 7-1 decision, so while unusual it's not unprecedented.
It is also noteworthy that it was overturned by the unanimous (9-0) ruling in
Brown v. Board of Education.
Will any of these issues be raised in the coverage,
commentaries and deliberations? Probably not but one would think that
Christians would be interested in such questions if anything for the sake of
honesty. But as is always the case when it comes to Evangelicalism, truth is
subsumed by political concern and motivation.
----
†This article was amended on 7 October 2020 as some of the previous
information regarding Article II was erroneous. The 2/3 requirement is limited
to treaties. As written it could be understood to apply to the wider spectrum
of advice and consent but historically has not been understood in that way.
Beyond treaties, advice and consent parameters are set by the Senate. One
aspect of this discussion that defies the claims of Originalism is the question
of political parties – something almost universally opposed by the Founders.
Since their development and now domination of the Congress, Constitutionally
delineated procedures have likewise been affected and function in a way never
intended by the drafters of the Constitution.
*Antonin Scalia (another Federalist Society Originalist) who
had been appointed to the court a year earlier seemingly slipped under the
radar. There was some eagerness to get an Italian on the court and his 1986
nomination coincided with Reagan's nomination of Rehnquist to the Chief Justice
position. The Rehnquist promotion seemed to absorb all the controversy and
contention. Scalia slipped in and yet when Reagan appointed Bork a year later
there was considerable resistance.
**Whether a simple 'up or down' vote is an adequate
expression or interpretation of Article II's 'advice and consent' clause is
certainly worthy of further exploration. Few scholars would agree it was meant
to be interpreted in such minimalist terms.
***Ironically the doctors treating those that have government health care (such as Medicaid) rarely if ever are challenged when they order tests or procedures. In other words government health care plans almost always give doctors considerable latitude sometimes akin to free reign. In Europe many of the government health plans even allow doctors to engage in experimental procedures. Once the profit motive is removed a new world is opened up.