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GREG HARTON: How, and how not, to judge

by Greg Harton | November 1, 2020 at 1:00 a.m.

As I listened and watched the confirmation hearings for Amy Coney Barrett, President Trump's nominee for the U.S. Supreme Court, it seemed to me that there was a lot to find objectionable.

About the senators.

To Barrett's credit, the answers she gave the Senate Judiciary Committee showed she's as qualified as any appointee who has sat for examination at the U.S. Capitol.

Because such televised hearings have in recent years become a circus of self-serving political diatribes by the senators charged to advise and consent on a president's appointees, some would say they're a waste of time. An appointment to the Supreme Court, however, is for a lifetime. It's not too much to expect a president's appointee to sit for questioning.

It wasn't Barrett's fault that senators generally do a lousy job of it. When senators get their turn, many of them end up giving speeches more than asking questions of the appointee. They want what they say to make the news equivalent of Sports Center's Top 10 Plays of the Day.

But over the course of 18 hours, Barrett displayed a patient demeanor and a calm -- some might say judicial -- temperament.

Her critics wanted her to talk about which way she might decide a case, whether in a lawsuit over, say, a presidential election or a challenge to the legal standing of abortion in this country.

Senators know better. No appointee worth having is going to sit there and say, "Oh, yes, if I get a case about labor law, I'm always going to decide in favor of the plaintiff worker." That would turn the judicial branch into a purely political operation when it, by design, is the one branch of our government supposed to rise above short-term political thinking to decide cases for the long-term good of the nation and its principles.

Despite the Democrats' efforts, I didn't hear Barrett say anything that suggested she was a bad nominee or that her judicial philosophy -- textualism -- is somehow a fatally flawed approach to reviewing the Constitution or the laws adopted by the legislative branch.

Her judicial approach isn't a radical one at all and it bothered only those who assert unelected judges should wield greater influence on the public policies of our government. That's all well and good as long as a judge is helping you get what you want but can't achieve through the political process. Put the shoe on the other foot and it prompts cries of "activism," which can come from either a liberal or conservative perspective.

If laws aren't to be evaluated based on what they actually say, how can nonlawyers and nonjudges know how to comply with them?

Democrats appeared incapable of believing a judge renders decisions based on something beyond personal viewpoints. And it's almost as though some of them can't or won't believe one's reverence for the law and the judicial review process might actually lead to a legal ruling that wouldn't fall in line with a judge's personal preferences. "It's not the law of Amy," she told them.

Name one human who doesn't bring personal views with them to any role or task?

Having justices who are geared to recognize constraints of the U.S. Constitution isn't some evil judicial philosophy.

Rather, a judiciary that observes certain boundaries identified within the nation's founding document shifts the political decision-making where it belongs, to the branches of our government -- executive and legislative -- where politics are supposed to be alive and active.

Just because we don't care for the people who nominated Barrett or the process by which she was seated doesn't mean those things will define her time on the court. Critics have viewed her lifetime appointment as a negative, but it can also be among the positives in that she now is not subject to the external politics.

Greg Harton is editorial page editor for the Northwest Arkansas Democrat-Gazette. Contact him by email at [email protected] or on Twitter @NWAGreg.


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