As the nation watches Republicans rush to approve President Donald Trump’s nominee Amy Coney Barrett to a seat on the Supreme Court, it’s worth asking whether the hurried effort undermines the primary argument conservatives make about the courts.
Put another way, it’s time to push back against those who claim that liberal judges are activists, while conservative judges hold fast to what the law really says, and what the nation’s founders intended when they wrote the Constitution in the 1780s.
The very act of rushing through this nomination out of partisan fear is a form of activism, undermining conservatives’ claims that they don’t want judges with political agendas.
Further, it’s presumptuous for anyone on the right or the left to claim special insight into the founders’ intentions.
If you’ve read a bit of history, you know the founders were not of a single mind. In writing the Constitution, they compromised in some places and blurred the lines in others.
And, no, they didn’t agree on just what the words in the document meant, which is why before the ink had dried, critics demanded amendments, leading to the Bill of Rights.
And after the Constitution was ratified and officials elected, there was almost immediate disagreement over such things as George Washington’s claims of executive privilege.
Little in history suggests the founders’ aim was to issue a strict set of rules that future generations would follow. Rather they created a framework that would allow Americans to evolve, prosper and be part of a democratic society.
Well, that would allow white, male residents to prosper and be part of a democracy.
The founders, if you remember, couldn’t even agree to extend civil rights to women, or basic human rights to Blacks and Native Americans.
It took generations of moral, economic and social progress — and many Supreme Court decisions — to extend Constitutional rights to all citizens.
High-minded talk about original meanings and the founders’ intentions is farce. It’s a fiction created to disguise a political agenda as principle.
Recent Supreme Court decisions involving Trump’s tax returns highlight how freely conservatives put their own political spin on the law.
As you might recall, both the U.S. House and a New York prosecutor sought access to Trump’s tax returns. Trump fought the efforts, asking the courts to block release of the information.
In July, in decisions written by Chief Justice John Roberts, the high court ruled the prosecutor in New York could continue his pursuit, but that Congress had failed to show its need for the documents.
Four conservative justices opposed releasing the tax returns to either Congress or the prosecutor. Their position is not supported by the text of the Constitution or the 1924 law that House committees used in their efforts.
Instead, conservative justices relied on expansive interpretations of earlier court rulings. They also argued the president has special rights not articulated in any law. Justice Clarence Thomas went so far as to claim the tax returns could be sought only as part of an impeachment proceeding.
There is scant evidence to argue that the founders intended to place the president above the laws others must follow. There is, however, ample evidence showing conservatives have proved as judicially active as liberals.
And the rush to confirm Barrett before the election underscores the fact that such activism is what the Republican Party seeks.
A native of Garden City, Julie Doll is a former journalist who has worked at newspapers across Kansas.