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Separation

The Amy Coney-Barrett Supreme Court confirmation hearings has touched on the concept of separation of church and state due to the fact that Justice Barrett is a practicing Catholic. There is a fear that Justice Barrett would impose her religious beliefs on her decisions. In 2017, Senator Diane Feinstein said to her, “The dogma lives loudly within you.” Regardless of the Constitutional provision against “Religious tests”, her impartiality in regards to her religious beliefs has been questioned throughout the hearings.

There are two other entities of our government that must remain separate and those are the Supreme Court and Politics. In the Federalist Papers, Alexander Hamilton explained that “the complete independence of the courts of justice is peculiarly essential in a limited Constitution… Without this, all the reservations of particular rights or privileges would amount to nothing.”

The Supreme Court was designed to be apolitical. That is why the Justices are not voted in, and why they are appointed for life. It is necessary for the justices to remain separate from the corrupting aspects of politics. They are neither accountable to any politician nor to the vote of the people. Certain Senators are very concerned that Amy Coney-Barrett will politicize the Supreme Court even though as an originalist and textualist her philosophy of deciding cases is directly contrary to what these Senators claim they fear. The court has been politicized for so long that this move back to originalism appears on the surface to be activism, but undoing the activist history of the last 40 years is not activism. Only in a court that has been corrupted so often for so long that decisions grounded in a purist vision would appear to be corrupt.

The politicization of the Supreme Court began in 1973 with the Roe v Wade decision. Regardless of anyone’s view on abortion, it is clear that there is no Constitutional right for abortion. Abortion is not written into the Constitution. Even though there were laws on the books about abortion during Colonial times, abortion was not addressed by the framers or ratifiers. The Constitutional right to abortion which is the law of the land was created out of thin air by activist Judges in 1973.

These activist Judges believe their role on the Supreme Court went well beyond simply calling balls and strikes, but deciding the outcome of the game. They were not merely content to determine whether a law or statute is Constitutional based on the text of the law and the Constitution. They acted like legislators, advancing political agendas. In Roe v Wade, these Justices created a right where there was none written in the text of the Constitution because the actual legislators were unable to pass the laws legalizing abortion.

That is why Liberals are so scared of Judges like Amy Comey-Barrett who are originalist, who are guided by the text of the Constitution. They know that there is nothing written in the Constitution guaranteeing the right to abortion. And if the Constitution is read as is, the grounds for making abortion a Constitutional right disappears. Judges like Amy Coney-Barrett turning the court back to originalist philosophy will expose the ruse of Roe v Wade.

So, originalist Judges must be attacked. It started with Robert Bork. One of the most brilliant legal minds of his generation was vilified led by Senators Joe Biden and Ted Kennedy. Senator Kennedy said, “Robert Bork’s America is one where women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down innocent citizens doors in midnight raids, and school children could not be taught about evolution, and writers and artists could be censored at the will of government.”

Of course, Robert Bork was none of these things. In his hearings he said, “If a judge abandons intention as his guide, there is no law available to him, and he begins to legislate a social agenda for the American people. That goes well beyond his legitimate powers. He or she then diminishes liberty instead of enhancing it. The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.”

Biden and Kennedy railed against Bork because Justice Bork believed that he was bound by the written text of the Constitution and the law. He could not go outside that. He could not impose his own beliefs on his court opinions. But Justices going beyond the Constitution and imposing their own beliefs is the only way abortion can become a Constitutional right.

Justices Clarence Thomas and Brett Kavanaugh were attacked for the same reason. Originalists have no place on the Supreme Court for the politicians who want to use the Court as a super-legislature. Those Justices were lied about and smeared. Justices Thomas and Kavanaugh were accused of being sexual predators. There was zero credible evidence to support these claims. They were unfounded accusations like the ones you see during political campaigns. These Judges are not evil people. They are impartial Justices who are being slandered by partisan politicians. Impartiality is seen as evil to partisans.

In these hearings, the only thing that is being politicized is the confirmation process done by the very Senators who have charged Amy Coney-Barrett of politicization. Senator Corey Booker asked her if she was a white supremacist and Senator Mazie Hirona asked Justice Barrett if she committed sexual assault. There is absolutely no evidence that would cause anyone to ask her these questions. Senators Booker and Hirona know Amy Coney-Barrett is neither of those things, but these questions were asked not to elicit information on her personal character or learn about her legal expertise, but to make shallow political points. These Senators are the ones politicizing the Supreme Court by politicizing the confirmation process.

Certain Senators worry that she will be the final vote in a contested election, because they fear that Donald Trump will not accept the results of the election if he loses. But the last three Democratic Presidential candidates who lost the election refused to accept the results of the election. Republican candidates have always accepted the results of the election, yet the Republican is the one being asked about accepting the results. Hillary Clinton has already told Joe Biden not to concede under any circumstances, yet Joe Biden is never asked about not accepting the results of the election. But Amy Coney-Barrett is asked. Why? Because these Senators are politicizing the process.

Many of the same Senators who have been admonishing Justice Barrett for politicization of the courts are threatening the biggest politicization of courts of them all, court packing. Joe Biden and Kamala Harris have refused to answer the question on court packing.

Court packing is what dictators do. It turns the judiciary into an instrument of the dictators or the politicians in power, and not of the people. Hugo Chavez of Venezuela packed the courts in to consolidate and entrench his power. And recently, Nicholas Maduro followed in Chavez’s footsteps in Venezuela by packing the courts as well. In Hungary, dictator Viktor Oban firmly cemented his control on power by also packing the court.

In 1983 when court packing was brought up, Joe Biden said about Franklin Roosevelt’s attempt to pack the court in 1937. “It was a bonehead idea. It was a terrible, terrible mistake to make and it put in question for an entire decade the independence of the most significant body… the Supreme Court of the United States of America.” He made that claim when activists were the majority in the court, and a Republican was in the White House.

Amy Coney-Barrett will not politicize the Supreme Court. She will make it less political because of her judicial philosophy, and that’s what the Senators who are attacking her are most afraid of. Amy Coney-Barrett is infinitely more intelligent and knowledgeable on the Constitution and the Supreme Court then any Senator questioning her. And that stark contrast has become evident through these hearings. The United States of America needs more Amy Coney-Barrett’s leading us, and much less of those who seek to destroy her. Amy Coney-Barrett and these confirmation hearings have exposed many of these Senators for who they are, and this process for what it is, purely partisan politics.

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Judd Garrett is a former NFL player, coach and executive. He is a frequent contributer to the website Real Clear Politics, and has recently published his first novel, No Wind

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