The death of Supreme Court Justice Ruth Bader Ginsburg — coming even later in an election year than the death in 2016 of her friend and ideological rival, Antonin Scalia — has resulted in the political divide that political junkies were expecting ever since news reports of her recent illness came out. But partisanship over lifetime appointments to the nation’s highest court turns this essential element of our constitutional republic into something for teams to squabble over, generating so much static that a discussion about who an ideal appointment would be.
Justices appointed by Republican presidents have tended to drift to a position on the left side of the political center, but from the perspective of people who have to obey the law, rather than rig it in their favor, waiting for the court to moderate takes a significant portion of a lifetime. I say this as someone on the socialist end of the spectrum, but social conservatives can equally object that their goals take decades as well. Those whose interest lies in protecting the freedom and power of corporations to act as they please, by contrast, have enjoyed a court that represents them for well over a century.
The reality is that from the perspective of someone who values all rights, judicial nominees come with a mixed record of rulings and writings — unless, of course, the rights in question belong to corporations as persons. But one common divide is found on the subject of gun rights and abortion rights. A justice who supports one, however tepid that support may be, will often oppose the other, again in various degrees. This is when a case can even make its way before the court for a hearing, of course.
Trump’s nomination to replace Ginsburg, Amy Coney Barrett, illustrates this principle. She has spent only a few years on the bench, so her record is thin, but her dissent in a gun-rights case expressed the opinion that a man with a non-violent felony record should not be excluded from owning firearms on the grounds that the natural right to self-defense supersedes a person’s ability to participate in civic affairs. This is a distinction that she drew in another case by saying that a felon could be barred from voting for not being a virtuous citizen. She does not bother to consider the life history of women with regard to abortion, however, having expressed her opposition to this procedure. How she would rule if abortion were presented as self-defense is anyone’s guess. Barrett did join a majority in denying an appeal to AutoZone in a case in which the Equal Employment Opportunity Commission found that the company had discriminated against minority employees, which might indicate a willingness to side with workers.
In other words, her record presents a little good, a little that offers a case for cautious hope, and a little that is bad. What I would like to see is a judicial philosophy that the law exists to protect the people — to protect our individual rights, especially when they come into conflict with organizations, be they private or public. I would like to see all such rights protected, not just the ones that are of particular concern of one party or the other. This can be summed up in slogan form by the saying that I support a gay couple’s right to defend their pot farm with AK-47s — and a woman’s right to decide how her body will be used. And the right of all people to have a say in the laws that they must follow.
And on and on. The Supreme Court should be the ultimate guarantor of the interests of ordinary people, the final equalizer that works to level the playing field. On gun rights, Amy Coney Barrett appears to meet this obligation, but her failings in other areas make her a nominee whom I cannot support.