Democrats admit – platform unconstitutional

This morning the Senate Judiciary Committee took up a motion to postpone the confirmation of Amy Coney Barrett’s Supreme Court appointment. Senator Richard Blumenthal (I-Ct.) introduced it. To no one’s surprise, the motion failed on a Party line vote. But the stunning part of that early business meeting came during the debate on that motion. In that debate the Democrats admitted that their entire platform is unconstitutional.

The meeting, the Democrats, and the witnesses

The meeting took place in the Committee hearing room in the Hart Senate Office Building at 9:00 a.m. today. After the business meeting, the Committee heard from ten witnesses in two panels. The witnesses did not all speak in the negative—far from it. Two members of the American Bar Association testified to her high qualifications to sit on the Supreme Court. One blind woman spoke eloquently of how Judge Barrett helped her while she was studying law. But many other witnesses expressed fear that certain precedents—on which they rely—would fall to a Constitutional challenge.

Given the sorry state of civics education in America today, that a panel of witnesses would include complainers about programs they are about to lose should surprise no one. Of course no one told them that the Senate is not the forum to file “amicus briefs” in advance. Nor is the Committee on the Judiciary.

Please don’t appoint this woman a Justice, because I’m afraid she will terminate my favorite programs

does not speak to a candidate’s qualifications to sit on the Court. If they want to cry poverty and beg that government doles continue, let them ask their Senators and Representatives to propose amendments to the Constitution to allow them to continue.

But a Senator should know better. And any Senator sitting in judgment of a candidate for the Supreme Court should certainly no better.

The way the Democrats on the Committee behaved this morning, strongly suggests that they do not.

Democrats want to protect dubious precedents

Senator Chris Coons (D-Del.) turned in, by all odds, the most striking, ironically on point—and damaging—performance. That even includes Senator Amy Klobuchar (D-Minn.) once again blubbing about this program or that program upon which her constituents “depend.” Of Senator Sheldon Whitehouse (D-R.I.) openly threatening his colleagues by school bully talk, the less said the better.

But Senator Coons bared the position of the Democrats as no one has done before or (so far) since. One can summarize the gist of his remarks in this way:

1. The Democrats have worked long and hard to establish “social justice” and programs that “support” many of their constituents.
2. Until now, the Supreme Court has reliably recognized these programs as within the spirit of the Constitution. (Which can only be because they regard the Constitution as “a living document.”) Ruth Bader Ginsburg played a key role in this upholding until she died.
3. The confirmation of Amy Coney Barrett will threaten all these programs with invalidation as soon as someone challenges them. The reason: the challengers would have the votes.

Among the precedents the Democrats so strenuously wish to preserve:

• Roe v. Wade (abortion on demand and without apology)
• Florida ex rel. Bondi et al. v. Sebelius (upholding “Obamacare” after the Chief Justice essentially re-wrote it from the bench)
• Obergefell v. Hodges (forcing every State in the union to recognize, and license, “marriages” between same sex roommates sharing bed)

Democrats distort history as well as the Constitution

Lay aside for a moment Senator Klobuchar trying to invoke Abraham Lincoln waiting until after the Election of 1864 to fill a Supreme Court vacancy. As Senator Ted Cruz (R-Texas) pointed out, President Lincoln had to wait because:

1. The Senate was not then in session, and furthermore
2. The Senate could not possibly assemble in time by reason of travel distances. (Rail transport was not nearly as fast as is commercial aviation today.)

Not to mention: there happened to be a war on. Which was the War Between the States.

Let us examine instead the remarks by Senator Coons and his fellow Democrats concerning the fragility of their favorite precedents. Can he have failed to understand that he just admitted that those precedents are unconstitutional? And that the only reason they stand today is that the Supreme Court turned the Constitution into

a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.Thomas Jefferson, letter to Judge Spencer Roane, 6 September 1819.

Precedents good and bad

CNAV contends here that the Supreme Court has long shaped the Constitution into a form the Framers would never recognize. True enough, Presidents James Madison and Thomas Jefferson would likely appreciate some of these precedents:

• Brown v. Topeka Board of Education (forbidding schools to keep the races separate)
• Loving v. Virginia (doing away with the concept “miscegenation” as an excuse to deny a marriage license.)
• Miranda v. Arizona (“You have the right to remain silent,” etc.)

It ill befits the Democrats to suggest that Judge Barrett or any member of the Court now sitting would seek to overturn any of these precedents. Perhaps Elkins v. United States, setting forth “The Exclusionary Rule” on search and seizure, might be open to clarification. Or perhaps not! Instead, Judge Barrett would cite Elkins, along with Miranda, as reason enough to allow persons fearful of criminal actors in their communities to arm themselves for their own self-defense. Also to provide for and maintain that “well-regulated militia” the Constitution declares “necessary to the security of a free State.”

In sharp contrast, Roe v. Wade cannot have any Constitutional foundation. Robert H. Bork said so in 1987. Of course, that is why we never saw a Justice Bork. And why “To Bork” is a slang verb even today, along with “To Boycott.” Neither can Obergefell v. Hodges. For that reason, Thomas J declared that Obergefell creates “a problem that only [we] can fix.” Alito J said much the same.

A rewrite of a statute

And what shall we make of Roberts CJ, in deciding Bondi as he did? He re-wrote the statute at issue just to excuse voting to retain it. Alito, Scalia, and Thomas JJ all asked him, in so many words, what he thought he was doing. Persistent rumor has it that those three Justices fell to Not Speaking to Roberts CJ until Scalia J died.

The case of California v. Texas will come to oral argument before the Court on 10 November. In light of the flimsy basis of the Bondi and other precedents, of course the Democrats take alarm.

Yes, Democrats are coming for your guns and your cars

Turn now to another performance, almost as damaging, from Senator Dick Durban (D-Ill.). He betrayed his own desire: to establish precedents to deny even more rights to the people. Thus not only are certain current precedents at risk. Senator Durban himself wants to overturn a few precedents, including D. C. v. Heller. The two cases bearing that name now establish that the right to keep and bear arms is an individual right. So Senator Durban takes alarm that a team of Alito, Barrett, Gorsuch, Kavanaugh, and Thomas JJ will not let him confiscate civilian weapons. Nor will they let him order people to get out of their cars because they are cooking the planet.

His accusing Judge Barrett of willingness to refuse to affirm the Law of Gravity, because it might come up in a case before the Court, testifies to this desire. Apart from the manifest absurdity of that charge, it had nothing to do with the motion then at hand.

Cheat-by-mail under threat

Last of all, turn to Senator Patrick Leahy (D-Vt.). He remembers that the President has said he wants nine Justices on the Court to hear election challenges. When he says that, he betrays the fear of the Democrats that:

1. They will lose the election, and
2. Their attempts to cheat their way to winning the election will fall before a Supreme Court challenge.

Again, because Alito, Barrett, Gorsuch, Kavanaugh, and Thomas JJ will frustrate their plans. (Forget Roberts CJ. A Justice who rewrites statutes to give them a Constitutional veneer, cannot reliably judge the Constitutionality of any case.)

In summary, the Democrats just admitted that their entire platform is unconstitutional, and they’re afraid they’ll lose everything. And all because Ginsburg J died untimely. CNAV believes that even this woman

deserves greater forgiveness for her behavior than do Senators Coons, Durban, Leahy, Klobuchar, Blumenthal, et al. At least she was a civilian. These Democrats are Senators—and proceeded to forget that they were Senators.

About the image

“File:Amy Coney Barrett.jpg” by Rachel Malehorn is licensed under CC BY 3.0