Who’s Afraid of Amy Coney Barrett?
The Senate confirmation hearings for Amy Coney Barrett may lack for political drama, but they are still instructive. They are revealing the deep fault lines over the Supreme Court, and how Democrats view it as a mini-legislature to achieve policy goals, rather than a real judicial body.
参议院对艾米·科尼·巴雷特(Amy Coney Barrett)的确认听证会可能缺乏政治戏剧性，但它们仍然具有启发性。他们揭示了最高法院的深刻断层，以及民主党人如何将其视为实现政策目标的微型立法机构，而不是真正的司法机构。
Democrats are asking very little about the actual law or Judge Barrett’s jurisprudential thinking. Instead, one after another, Democrats have used their time to focus on a parade of policy horribles if she is confirmed. And for emotional effect, they brought along photo displays of children and women who would supposedly be her victims on health care, abortion, gun violence and more.
All of this distorts the role of a judge, who has to rule based on what the law is, not on what she would want it to be. “Judges can’t just wake up one day and say ‘I have an agenda. I like guns. I hate guns. I like abortion, I hate abortion’ and walk in like a royal queen and impose their will on the world,” Judge Barrett said Tuesday. But that is lost on Democrats, who are treating the hearings like a campaign rally.
Start with their focus on Judge Barrett as a threat to health insurance. Republican state attorneys general, joined by the Trump Administration, argue in a case that the Court will hear on Nov. 10 that the Affordable Care Act should be struck down. Recall that Chief Justice John Roberts in 2012 upheld the individual mandate to carry health insurance as a tax. But the 2017 tax reform zeroed out the financial penalty for not being insured. The AGs say that because there now is no tax, the entire law should be struck down.
首先，他们把焦点放在巴雷特法官对医疗保险的威胁上。共和党州总检察长与特朗普政府一起，在最高法院将于11月10日开庭审理的一起案件中辩称，《平价医疗法案》(Affordable Care Act)应该被推翻。回想一下，首席大法官约翰·罗伯茨(John Roberts)在2012年支持将个人强制携带医疗保险作为一项税收。但2017年的税制改革将没有保险的经济处罚归零。检察官们说，因为现在没有税，所以整个法律都应该废除。
As we’ve argued, the AG suit is political and legal malpractice because the lawsuit has almost no chance of success. Three conservative Justices have suggested in opinions this year that they are wary of throwing out entire laws due to discrete constitutionally defective provisions, and with good reason. The vote could be 9-0.
Yet Democrats assert that Judge Barrett’s appointment to the Court would threaten protections for millions of Americans with pre-existing conditions, insurance coverage for young adults, free mammograms and birth control as well as lead to higher prescription costs for seniors. “It’s all at stake,” Kamala Harris declared.
Imagine if GOP Senators displayed photos of crime victims for a Democratic nominee who had overturned a conviction on appeal? They would be skewered as demagogues.
California Sen. Dianne Feinstein asked how Judge Barrett would handle the ACA’s lifetime coverage caps. Judge Barrett duly noted she would consider this like any “issue that would arise under the Affordable Care Act or any other statute should be determined by the law—by looking at the text of the statute, by looking at precedent.” Good answer. Coverage caps are a policy issue for Congress.
加州参议员黛安·范斯坦(Dianne Feinstein)询问巴雷特法官将如何处理ACA的终身保险上限。巴雷特法官恰如其分地指出，她会像考虑任何“根据”平价医疗法案“(Affordable Care Act)或任何其他法规产生的问题都应该由法律决定--通过查看法规文本，通过查看先例”来考虑这一问题。“。回答得好。覆盖上限是国会的一个政策问题。
Democrats also flogged Judge Barrett for criticizing the Chief Justice’s creative interpretation of the individual mandate as a tax. She joins a long queue there. But Judge Barrett replied: “I am not hostile to the ACA. I am not hostile to any statute that you pass. . . . I apply the law. I follow the law. You make the policy.” She also said “reliance interests,” such as the number of people who gained insurance under ObamaCare, have to be considered now that the law has been in place for six years.
Democrats also distorted the risks that the Court will overturn Obergefell v. Hodges that divined a right to same-sex marriage in the Constitution because Justice Antonin Scalia dissented and Judge Barrett was his clerk. Yet Justice Scalia dissented because the Court was imposing policy preferences by diktat.
民主党人还扭曲了最高法院推翻奥伯格费尔诉霍奇斯案(Obergefell v.Hodges)的风险，该案在宪法中规定了同性婚姻的权利，因为大法官安东宁·斯卡利亚(Antonin Scalia)持不同意见，巴雷特法官是他的书记员。然而，斯卡利亚大法官持不同意见，因为最高法院正在通过命令强加政策优惠。
As he explained, “the substance of today’s decree is not of immense personal importance to me,” but the judiciary’s hubris in divining a new right signified “that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
He was right then, but tens of thousands of same-sex Americans have been married since Obergefell. This is the definition of a “reliance interest,” and conservative judges take it seriously. There is no way a conservative Court is going to invalidate those marriages.
The current “conservative” Court has already shown it is more heterodox than one dominated by liberals. That’s because originalists seek to interpret laws based on the text and the Constitution rather than merely find a way to arrive at a foregone policy result. Everything we know suggests Judge Barrett will rule in the same originalist way, and this should reassure the public that the Court will be properly modest in interpreting the law as it is.
Democrats are doing a great disservice to the law and judiciary by treating these hearings like an emotive political ad. They are telling voters that the courts are nothing more than another arena for political disputes. Keep doing that and soon the Supreme Court will be as unpopular as Congress—which may be their real goal as they prepare the ground to pack the Court next year.