The Barrett Problem

I specifically waited a day to comment on this. Good commentary is a mixture of passion and prudence. If you sway too much to one side or the other your work is marred either with errors in logic or it just doesn’t have that certain something that makes it memorable. If I had done this yesterday it would have sided way too far on the side of passion.

I don’t know Amy Coney Barrett personally. I only know what I’ve heard of the course of the last month. Those that are familiar with her say she has a brilliant legal mind. They say she’s smarter than Brett Kavanaugh and Neil Gorsuch. She also might be more extreme. She had her fumbles during the hearings (only knowing four of the five protections in the first amendment), but I’m willing to chalk that up to nerves. Everyone is a lot smarter when watching Jeopardy then when they are actually on Jeopardy.

Those speaking doom and gloom might be a bit premature. We need to remember a few things. First, Clarence Thomas is 72 and Samuel Alito is 70. Stephen Breyer is also 82. Two of those justices are conservative. All three are likely to be replaced within the next eight years. If the Democrats win the White House, it’s not going to be a 6-3 court for very long. If they lose it could very well become a 7-2 court.

The second thing is that you never know how a judge is going to decide any individual case. Justices have been put on the bench since 1973 with the direct expectation that they repeal Roe v. Wade. That hasn’t happened. No one is quite sure whether Barrett is going to be the one that tips the scales. I have nothing against her personally. After all, she really hasn’t done anything yet.

The Barrett problem is not with Barrett herself necessarily, but with what she represents. Since George H.W. Bush was president we have had four Democratic presidential terms of three Republican ones. The Democrats have won the popular vote in six of the last seven presidential elections. Six of the nine justices were appointed by Republicans.

The Supreme Court is a simple and easy symbol of how power somehow does not represent the will of the people. A majority of citizens either are Democrats or lean left in this country. It may not be a super majority, but it is a sizable majority. Yet, a majority of state legislatures, governors, and the Senate are controlled by Republicans. The White House is controlled by a Republican even though more people voted for the Democrat.

On one level you have to tip your cap to Republicans. They have voter suppressed and gerrymandered their way into an elected majority. They have used the power they have had while there to get more done than the Democrats seemed to when they held power. Some of that is a purer understanding of how to wield power. Some of that is that one side seems to be more willing to work with the opposition than the other.

However you may feel about Barrett, the GOP, or liberalism/conservatism you do have to admit that this is a potential issue. When those in government don’t match the values of those that put them there you have a recipe of civil unrest. When those in power know this, exploit this, and thumb their noses at those that put them there then you definitely are going to have unrest. That’s what the Barrett confirmation and immediate aftermath represents.

Barrett should be put aside here. She’s done nothing wrong and is an unfortunate bystander here. Nominating her in the first place so close to an election is brazenly Machiavellian. Nominating HER specifically is beyond brazen when you consider the GOP knows the likely results of the election. They didn’t nominate a moderate. They nominated someone that could charitably be called the most conservative justice now on the bench.

It’s one of those moves that will backfire electorally. A majority opposed her nomination and they opposed her being put on the court. More people will likely vote Democratic if they were at all on the bench. Naturally, the talk has shifted to court packing. I’m not so sure this is a good idea.

People want government that reflects their values. A majority of people aren’t partisan hacks. Most people are more concerned with specific issues than blue vs. red. Making the next two or four years about punishing the GOP will likely turn those that switched their votes to blue off. We want affordable health care. We want affordable higher education. We want common sense environmental protections. We want people of color, women, immigrants, and LGTBQ to have equal rights. All of the other political theatre is not what most people want. Let’s get to Tuesday and start moving on from there.

Author: sbarzilla

I have written three books about baseball including The Hall of Fame Index. I also write for thefantatasyfix.com. You can follow me on twitter @sbarzilla.

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