(by David Limbaugh, Townhall) — I won’t pretend to be surprised by this, but Senate Democrats, knowing they don’t have the power to stop Judge Amy Coney Barrett’s confirmation to the Supreme Court, have turned the confirmation hearings into a campaign platform to smear President Donald Trump.
The Democrats’ approach to the hearings illustrates how disingenuous their professed commitment to preserve the integrity of “our democracy” is. Indeed, nothing better illustrates their failure to distinguish between a democracy and a constitutional republic than their misguided judicial philosophy.
The framers of our Constitution designed our system as a constitutional republic, not a democracy. As students of history and ancient democracies, they incorporated safeguards against pure democracy, which they knew could lead to mob rule. They aimed to maximize political liberty, and that required protecting the minority from the tyranny of the majority.
They divided and limited governmental power, as unrestrained governments tend toward tyranny. We all know the drill. They divided power between the federal and state governments (federalism) and distributed federal power among three separate branches of government (separation of powers).
They imposed an intricate scheme of checks and balances, pitting each branch against the other two to prevent any branch from becoming too powerful at the expense of the others and of individual liberties.
They included the Bill of Rights, which contained further express limitations on government, and they created a bicameral legislature to retard the governmental process and insulate it against impassioned mobs. George Washington described the upper chamber as the “senatorial saucer” that would cool legislation passed in the more democratic House.
Just as all of these structural safeguards are essential to maintaining our liberties against authoritarianism and absolutism, so is our ongoing jealous protection of these safeguards.
We have two political branches whose members are elected, directly or indirectly, by the people and that pass laws and otherwise make policy and enforce the laws. The judicial branch is a nonpolitical branch that should interpret, rather than make, laws. Courts must not act as super-legislatures because their members are not democratically chosen, because they are more insulated from accountability to the people and because the judicial branch serves the important function of interpreting laws.
When appellate courts make laws instead of interpreting them, they thwart the will of the people who elected the political branches. They violate the separation of powers and undermine the very system that was carefully crafted to preserve our liberties. We’ve seen examples of this throughout history, but especially since the ’60s, where the Supreme Court, by fiat, employs elaborate legal fictions to strike down perfectly constitutional laws passed by the other two branches, or to uphold unconstitutional laws.
Democrats argue that Republicans are just as guilty as Democrats in seeking to install judges who will enact their policy agenda. Many Democratic senators alleged that Republicans support ACB because they want her to advance their policy agenda. According to them, the GOP needs Barrett on the court to eliminate Obamacare, abortion rights and same-sex marriage — and to rule in Trump’s favor if a legal challenge to the results of the upcoming presidential election arises.
Democratic Sen. Chris Coons said that ACB would open up a new chapter of conservative judicial activism, but that is simply false. Republicans don’t want judges to advance conservative policies but to interpret the Constitution according to its originally understood meaning. This could result in overturning liberal legislation and court-enacted laws if they are unconstitutional, but not otherwise. Liberal activists, on the other hand, do substitute their policy preferences for those of Congress and twist the Constitution to do it.
Examples of liberal activism abound, but you’d be hard-pressed to find one of conservative activism. Republican Sen. Ted Cruz cited the example of school choice: Originalist judges wouldn’t mandate that all states have school choice, but leftist judges would prevent them from having it. If Roe v. Wade were overturned, conservative judges wouldn’t force states to outlaw abortions but would leave the question to their democratic determination.
Democratic Sen. Cory Booker said that replacing Ruth Bader Ginsburg with ACB would tilt the court further to the right. No, it would tilt the court further toward the Constitution, where it ought to be — and there’s a big difference.
It is not surprising that Democrats regard Barrett as a threat, given their reliance on unelected judges to usurp the lawmaking authority of the politically elected branches. But that is not how Republicans look at the judiciary, and if Democrats respected the separation of powers and truly wanted to protect the integrity of our republic, they would have nothing to fear from such stellar judicial nominees as ACB.
Democratic senators are campaigning from their senatorial perch instead of performing their duty of advice and consent. They are trying to scare voters into believing that ACB and other GOP-appointed judges will take away the people’s coverage for preexisting health conditions. Just like they continue to falsely accuse Trump of not having denounced white supremacy, they are misleading the people on health care, knowing that even if the court strikes down the Affordable Care Act entirely, Republicans have guaranteed that any replacement bill would include coverage for preexisting conditions.
Using all relevant criteria — judicial philosophy, qualifications, temperament and personal character — Judge Amy Coney Barrett is one of the most qualified Supreme Court nominees in our history. Adding her to the court will not threaten our liberties but rather greatly protect them.
David Limbaugh is a conservative writer, author and attorney. His latest book is “Guilty by Reason of Insanity: Why the Democrats Must Not Win.” Follow him on Twitter @davidlimbaugh and his website at davidlimbaugh.com.
1. The purpose of an editorial/commentary is to explain, persuade, warn, criticize, entertain, praise or answer. What do you think is the purpose of David Limbaugh’s editorial? Explain your answer.
2. What is the main idea of this commentary?
3. Re-read paragraph 11. What is your reaction to this assertion?
Liberals say they are against Judge Barrett because she is viewed as a conservative and they believe she will make her court rulings based on her personal philosophies. Conservatives say they support Judge Barrett because she is a constitutionalist and will not make her court rulings based on her personal philosophies, but rather on what the constitution says. Conservatives support Constitutionalists Antonin Scalia (who served on the court from 1986 until his death in 2016) and Clarence Thomas, whose strict interpretation of the Constitution has at times led them to make “liberal” rulings, not based on what they personally believed on the issue, but what they believed the Constitution said. It is important that you understand the issue in order to be a good citizen and an educated voter. Do you support constitutionalist or activist judges? Explain your answer.
Supreme Court Justice Ruth Bader Ginsburg’s death in September left a vacancy at the Supreme Court, and gives President Trump the ability to nominate another constitutionalist (originalist) justice. Originalist judges interpret the law as written; they determine what the original intent was when the founders wrote the Constitution. Trump promised to appoint judges who will interpret the Constitution as written. Republicans generally appoint constitutionalist judges.
Justice Ginsburg was an activist justice. Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.” Democrats generally appoint activist judges.
Democrats are concerned that the President nominating another justice will tilt the court in favor of constitutionalists, as well as give him a boost in the election.
On the Role of Judges:
Judges are like umpires in baseball or referees in football or basketball. Their role is to see that the rules of court procedures are followed by both sides. Like the ump, they call ‘em as they see ‘em, according to the facts and law-without regard to which side is popular (no home field advantage), without regard to who is “favored,” without regard for what the spectators want, and without regard to whether the judge agrees with the law. (from the American Bar Asociation)
“One of the big confusions in the…Senate fight over the confirmation of judicial nominees is that this is an issue about ‘liberal’ judges versus ‘conservative’ judges. The vastly more important issue is whether people who go into court should expect their cases to be decided on the basis of the law or on the basis of the particular judge’s own philosophy…Liberals have rooted for judicial activism because this activism has favored liberal causes and liberal views on such issues as abortion, the death penalty, gay marriage, and racial quotas. But activism can be used by any judge for any purpose.” Thomas Sowell, Hoover Institution