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Inside Washington

Future of judicial branch debated

Future of judicial branch debated
Senate to vote for Supreme Court nominee Barrett ahead of elections, while Biden comments on court packing.

Republicans on the Senate Judiciary Committee voted unanimously on Thursday to advance the nomination of Judge Amy Coney Barrett to the Supreme Court as all 10 members of the committee’s Democrats boycotted what one senator coined one of the “most important votes during our entire tenure.” The action now sets up a full Senate vote ahead of the Nov. 3 election.

During the committee vote to advance the nomination to the full Senate floor, Senate Judiciary Committee chairman Lindsey Graham (R., S.C.) celebrated the fact that Barrett was reported out of the committee unanimously and noted that the American Bar Assn. also said she’s well qualified (the highest rating possible) for the job and would rule fairly if chosen to sit on the highest court in the land.

During days of questioning, Barrett consistently presented herself as a judge who would follow the intent of the law and approach each case individually.

“What I can say is that I have certainly no agenda. I’m not on a mission. I’m not hostile to the ACA [Affordable Care Act] at all, and if I were on the court and if a case involving the ACA came before me, I would approach it with an open mind, just like I do every case, and go through the process that we’ve just discussed,” Barrett said in the third day of hearings.

“A judge needs to have an open mind every step of the way. So, as I said, I’ve changed my mind at oral argument, even after reading the briefs. I’ve changed my mind at conference, after consulting with my colleagues. So, if I were to just say how I thought I would resolve a case just because I saw the issue, it would be short-circuiting that whole process through which I should go and have an open mind and be open to persuasion,” she said later on in the questioning.

When it comes to court rulings pertaining to agriculture, ensuring that judges consider each side of the case and what is presented in the court filings is important -- not a preconceived idea of what is right or wrong.

Senate Democrats held a press conference hours after the vote, blasting that the Senate Judiciary Committee broke its rules by setting the Thursday vote and proceeding without any Democrats present. Senate Judiciary Committee ranking member Dianne Fienstein (D., Cal.) said after it was realized that Democrats would not have the votes to overturn the 12-10 majority in committee, Democratic members had "no further reason to participate in a committee process used to rush this process forward."

Packing the court

Graham said the real energy in the Democratic party is to pack the Supreme Court to expand it from nine members to “whatever is needed to make it liberal.”

Just hours before the vote, a portion of Democrat presidential nominee Joe Biden’s interview with "60 Minutes" offered insight into how he views the judicial branch and reports of “court packing.” Biden said if elected, he will put together a national, bipartisan commission of constitutional scholars and Democrats, Republicans, liberals and conservatives.

"I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system, because it's getting out of whack,” Biden said.

Biden continued that in one of his few statements on court packing, "The last thing we need to do is turn the Supreme Court into just a political football, [where] whoever has the most votes gets whatever they want," he said. "Presidents come and go. Supreme Court justices stay for generations."

Do we actually have bipartisan agreement, or is this just another political stunt? Are both sides saying they don’t want a political football that depends on who wins the White House every four years to eliminate a 150-year-old tradition of a Supreme Court with nine appointed lifetime judges? During comments made at the committee vote, Sen. John Cornyn (R., Texas) quoted former Justice Ruth Bader Ginsburg, who said in questioning of packing the Supreme Court with additional partisan judges, “There goes the crown jewels of the American republic, which is our independent judiciary. It becomes nothing but another political body -- a second legislative branch.”

In a statement ahead of the vote, Graham said the nomination process took a dark turn in 2013, when the Democrats changed the rules of the Senate for district and circuit court nominees requiring a simple majority vote.

“My Democratic colleagues chose to engage in a partisan filibuster of Justice [Neil] Gorsuch, for the first time in U.S. history requiring the changing of the rules regarding Supreme Court nominations,” he said. “As I said in 2013, I fear over time, the rule changes will have a chilling effect on the judiciary and create greater divisions within the Senate.”

Clearly, the often endearing relationships between Democrats and Republicans were also challenged when what many from the outside viewed when Feinstein shared a hug with Graham. During the vote meeting Thursday morning, Graham chastised the fact that by Feinstein showing an “act of human kindness,” the Democrats' agenda is clear. Feinstein was criticized and even asked to step down from her position because of the hug.

“The day we start changing the number after every election to make it the way we would like politically partisan-wise is the end of independence in the court,” Graham said.

After questioning on the third day, Barrett stated that it is at the center of the judicial branch’s role and how our forefathers intended the branch to function as a critical component of the three-ring government with checks and balances of one another.

“Well, the reason we have life tenure, as federal judges, is to be insulated from the pressure of such things like focus groups or polls or public opinion -- the pressure that it might apply for a court to decide a case a particular way or the other. That’s why we decide it according to the text,” she said.

Barrett explained that it can take years for a case to wind through the judicial decision-making process involving different courts and challenges.

“So, as opposed to policy-makers that don’t have to wait on real parties and real disputes, the parties get to shape the case their way. They get to decide what legal issues they’re going to contest, and that narrows what the court can do. So, policy-makers, if you had enough agreement to pass something, you could just do it in one day, just enact the law, enact the policy, and that is definitely not how judicial decision-making works.”

At the end of the day, we need three independent divisions of government -- executive, legislative and judicial -- to complement and counter one another to serve the best interests of all Americans and make sure no branch has more control than another.


TAGS: Policy
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