Even the Law is Dead in America

Amy Coney Barrett (the one not clapping)

W.J. Astore

This snippet just showed up in my email (courtesy of the Boston Globe):

Supreme Court nominee Amy Coney Barrett declared Monday that Americans “deserve an independent Supreme Court that interprets our Constitution and laws as they are written,” encapsulating her conservative approach to the law that has Republicans excited about the prospect of her taking the place of the late Justice Ruth Bader Ginsburg before Election Day.

Now, I know this is coded talk. The idea of a close and literal reading of the U.S. Constitution and related laws is meant to tell conservatives that she is not an activist, that she is not liberal in any way. But it also means that she’s mainly, in a bizarre way, a clerk rather than a judge — if her statement was meant to be the truth, the whole truth, and nothing but the truth. But it isn’t.

Barrett is spouting half-truths, since conservative judges are just as activist as their liberal counterparts on the bench. They simply disguise their activism using terms like literalism, which is “strict” and “conservative” and allegedly in keeping with what the Founders intended, as if we can be mind-readers. And even if we could be mind-readers, hasn’t the world changed a lot in roughly 250 years?

Look, I’m a historian, not a lawyer. I’m no expert on judging the law, but I can view the law in historical terms. And in those terms the law is organic, not static, as is our understanding of it. Put differently, the law should be made and remade for us, not we for the law. Because we’re human, we’re imperfect, the societies we create are imperfect, and so too are the laws we create.

Our goal should always be to form a more perfect union, to grow in understanding and compassion. Such is also true of the law. If all these judges do is to issue rulings simply on what is written in the documents before them, why do we even need a Supreme Court?

A static system of laws based on the writings of men who lived 250 years ago is not only unwise: it’s inhuman. Even the law is dead in America.

Update (10/13/20):

I used “literalist” when “textualist” and “originalist” seem to be the preferred terms for this judicial approach.

But judicial literalism echoes the Biblical literalism that is consistent with this judicial approach: the idea the Bible, like the law, should be read plainly, literally, based on the text, with no changes based on new scholarship.

It’s a mindset, an alleged quest for certainty through “simple” readings, but what it’s really all about is a deference to authority figures in the here-and-now who claim to know how to make these “simple” readings. And when they do, these readings are always in their favor.

Surprise! God favors a conservative patriarchy, just as the law does. Who knew?

Update 2 (10/14/20)

It beggars belief that an educated adult in America would have no firm opinion on climate change. Heck, even Trump has admitted there’s a human component to the same. But Amy Coney Barrett says she has no “firm views” on climate change; meanwhile, her father has been a lawyer with Shell Oil for decades. And a major case involving Shell on climate change is pending before the Supreme Court. Coincidence? See this article by David Sirota & Co.

https://www.dailyposter.com/p/upcoming-scotus-climate-case-involves

What’s sad about these sham senate hearings is how nominees like Kavanaugh and Barrett end up effectively perjuring themselves with their answers. I know: I’m not a lawyer and technically it’s probably not perjury. But they essentially answer questions dishonestly in their quest to be confirmed. Here’s an example:

https://www.theguardian.com/us-news/2020/oct/13/kamala-harris-amy-coney-barrett-senate-hearing

Finally, a friend made two fine points about Barrett. The first is she’s smart with the law; the second is she’s a person of faith. But what kind of smarts, and what kind of faith? Smarts that are limited, uninformed by compassion and an appreciation for the human condition, can be sterile. Faith that is rigid and shaped by a patriarchal church can be hidebound, conveying certainty and a holier-than-thou attitude.

The Case of Brett Kavanaugh

1024px-The_Kavanaugh_family_and_Donald_Trump

W.J. Astore

President Trump’s latest nominee for the Supreme Court, Brett Kavanaugh, has been accused of sexual assault as a teenager.  Of course, I have no idea if Kavanaugh is guilty of this charge, and I doubt if such a charge could be proved beyond a reasonable doubt in a court of law.  Kavanaugh’s accuser (her name is Christine Blasey Ford) says he was “stumbling drunk” when he assaulted her; Kavanaugh denies the accusation.  Indeed, he claims he wasn’t even at the party when the alleged assault occurred.

Supporters of Kavanaugh are already dismissive of the accuser and disparage her motives for coming forward (consider this mocking and reprehensible post by Donald Trump Jr.).  Naturally, those who are opposed to Kavanaugh are motivated by their animosity against him to believe the accuser even before she’s testified.  So it goes in hyper-partisan America.

A hearing is scheduled for Monday, September 24th; both Kavanaugh and his accuser will testify.  I imagine both will seem credible.  And people watching will probably see what they already believe.

I’m opposed to Kavanaugh’s nomination, but I was opposed before this assault accusation was revealed.  My opposition is idiosyncratic.  To me, Kavanaugh comes across as a toady to men in power.  He praised Trump for the allegedly exhaustive process that led to his nomination.  He’s led a life of insularity and privilege, from expensive private prep schools to the Ivy League (Yale and Yale Law School) to the usual clerkships and appointments.  Strong political partisanship in favor of Republicans has characterized much of his career in the law.  From his Wiki biography:

As an attorney working for Ken Starr, Kavanaugh played a lead role in drafting the Starr Report, which urged the impeachment of President Bill Clinton. Kavanaugh led the investigation into the suicide of Clinton aide Vince Foster. After the 2000 U.S. presidential election (in which Kavanaugh worked for the George W. Bush campaign in the Florida recount), Kavanaugh joined the administration as White House Staff Secretary and was a central figure in its efforts to identify and confirm judicial nominees.

His hyper-partisanship and especially his toadying before Trump make him unsuitable as a Supreme Court justice.  Indeed, Trump seems to have selected him over other conservative candidates because Kavanaugh believes a sitting president can’t or shouldn’t be indicted, a stance that’s quite attractive to Trump, who prefers spineless yes-men.

We need Supreme Court justices who uphold the law without being deferential to the powerful.  We further need justices with more than a measure of compassion for the weak.  From all I’ve read and seen, Kavanaugh won’t be that kind of justice, so I’m opposed to his nomination.

Next Monday’s hearing, and Kavanaugh’s ultimate fate, will likely further divide America along political and gender lines.  Once again, sadly, the Trump administration has found fresh ways to divide rather than to unite us.

Update (9/19): The Monday hearing is in jeopardy as Kavanaugh’s accuser calls for an FBI investigation.  Meanwhile, Kavanaugh’s supporters have come up with a strategy to defuse the sexual assault charge, as reported in the New York Times today:

Mr. Trump’s advisers and Judge Kavanaugh’s allies appeared to be settling on a strategy of defending him by suggesting that this must be a case of mistaken identity. Under the emerging strategy, Judge Kavanaugh’s defenders would accept that Dr. Blasey was in fact assaulted but would insist that it must have been by someone other than Judge Kavanaugh because he denied it.

The approach reflects the shifting reality of the #MeToo movement when it has become politically perilous to directly attack the credibility of women who come forward to tell their stories. By suggesting that perhaps there was confusion after more than 30 years, White House allies said that they could offer wavering Republicans whose votes are critical for his confirmation another explanation for the he-said-she-said conflict without tearing down Dr. Blasey.

You might call this the “It wasn’t me” strategy.