PAST IS PROLOGUE, PRESENT NEED NOT BE FUTURE
As I listen to the opening of the Senate Judiciary Committee Hearings on the nomination of Judge Amy Coney Barrett to the Supreme Court of the United States (SCOTUS) it highlights how all-consuming and all-corrupting our politics has become. The main themes of the argument against the nomination appear to be the timing of the nomination and the impact that it may, or may not, have on the survival of the Affordable Care Act (ACA).
In regard to the timing, it is entirely a political argument, not a structural or procedural one. It exists in large part because of the cancerous divisions that our politics have created in our institutions, our government, and in our public discourse. In large part the Republican Senate created the argument itself in its chosen course of action when Merrick Garland was nominated by then President Obama. At that time the Senate and the Presidency were divided and the Senate chose, within it’s rights and authority, to not hold hearings on the nomination. This was a political choice, one which the Republicans wanted to escape the political responsibilities and consequence of by making the argument that the hearings should not be held in the final year of a President’s second term. Let’s wait for the voters to speak, they said. They handed the Democrats the argument they level today. Yes, the circumstances are somewhat different, but the drive-by appearance is the same. Now those words come back to bite them, just as Harry Reid’s elimination of the 60 vote threshold for approval of other judicial nominees has returned to bite the Democrats. The Republicans should have had the courage and conviction to stand firmly in their position without employing what they knew were arguments of appearance rather than substance. However, had they simply said we are within our constitutional rights to not hold the hearings they knew they would likely pay a price at the ballot box that November in many races, and they sought to dodge that cost. The fact is that costless courage is not courage at all, but rather cowardice, and cowardice carries its own price.
Regarding the impact that the nomination may or may not have on the ACA, it is in fact a misguided argument and one by which the elected yet again seek to shirk their own responsibility and the consequences of their inadequate work. The argument is framed as such, the ACA does good things so we must keep it. The SCOTUS’ job is not to evaluate a law’s “goodness” or to apply public opinion, but rather to evaluate the appropriateness of its content and construction within the bounds of the US Constitution. Democrats it would seem, if taken at their words, would have us keep a law that should be struck down because it yields worthy ends, while ignoring the corruptive and destructive nature of the means that produced it. A justice who rejects the ACA isn’t ending it, but rather returning it to the hands of the politicians who did not properly honor its content and their own sworn duty in the first place. SCOTUS, if it intends to keep with its appropriate and essential role, must objectively evaluate the Act against the Constitution and proper legislative procedure and if it is found deficient, then it must be returned to the Legislative branch. The elected must then do their job and act upon it, and finally, the people must bear their responsibility and have their say in response to those actions. If any of us are willing to concede to keeping ill-prepared law because it does good things, then we have sacrificed America on the garish blood-soaked alter of politics.
And so a new political theme emerges: If you wish to avoid scrutiny and consequences for your own poor labor, then work to direct that scrutiny elsewhere. So many in the legislative branch seek to push their responsibilities upon the judicial branch. That is improper and a shirking of their own duties. You cannot hastily pass flawed legislation, count on the bureaucracy and administrative behemoth of government to keep it alive, and then blame others for its failings. In doing so the people who govern us announce themselves as the scoundrels they are. Legislators who are scared that their work will not survive, should invest more of their effort in producing better work product. Even at this moment, the Congress and those who wish to see the ACA and many of it’s worthy objectives live on, are they working to develop improved legislation that achieves the ends but this time by means that will sustain it? No, and why should they, there are political games to be played and an election on the near horizon. Don’t worry though, they will get to the real work after the election. Hold that thought, the next election is a mere two years away, the real work will again have to wait.
Every single time that the elected place their political objectives above the oath they swore, above the constitution they serve, and the people they are meant to represent, they do irreparable harm to our nation, harm that echoes for eternity and which will ultimately accumulate to a point that it ends the American experiment. If you want a preview of our governance for decades to come simply watch these hearings. We must begin to escape this, we must choose a place to start to do so, and I humbly offer that opportunity in New York’s 18th Congressional District.
(Originally published on Facebook, 10/13, 9:17 AM)