[This is Part 2 of the Ethics Alarms essay that begins here.]
The first section of “A False Narrative Exposed” concluded,
The extent of the Democrats’ false smearing of Justice Amy Coney Barrett and the blatant fearmongering regarding the consequences of her confirmation are put in sharp perspective when one goes back and re-reads the New York Times editorial of the week before headlines, “The Republican Party’s Supreme Court.” Indeed, the Times editorial shows us much more: the utter dishonesty of the mainstream media and its willingness to mislead rather than inform the public; it’s deliberate employment of false history to advance its partisan ends, and perhaps most damming of all, the weak powers of reasoning and analysis the alleges cream of the journalistic crop applies to its craft. Then there are the repeated reminders that the Times is so deeply in bed with the Democrats that it can count its moles.
Let’s look at that editorial…
“What happened in the Senate chamber on Monday evening was, on its face, the playing out of a normal, well-established process of the American constitutional order: the confirmation of a president’s nominee to the Supreme Court. But Senate Republicans, who represent a minority of the American people, are straining the legitimacy of the court by installing a deeply conservative jurist, Amy Coney Barrett, to a lifetime seat just days before an election that polls suggest could deal their party a major defeat.”
Right—those phony polls meant to suppress the GOP vote showing that the Democrats were going to increase their dominance of the House and win control of the Senate. The scandalously misleading and mistaken polls were also part of the novel Democratic argument, endorsed by the Times, that the Senate should reject a legal and historically routine SCOTUS nomination because of clearly biased polls…a corrupting phenomenon the Founders never heard of.
“As with President Trump’s two earlier nominees to the court, Neil Gorsuch and Brett Kavanaugh, the details of Judge Barrett’s jurisprudence were less important than the fact that she had been anointed by the conservative activists at the Federalist Society. Along with hundreds of new lower-court judges installed in vacancies that Republicans refused to fill when Barack Obama was president, these three Supreme Court choices were part of the project to turn the courts from a counter-majoritarian shield that protects the rights of minorities to an anti-democratic sword to wield against popular progressive legislation like the Affordable Care Act.”
The only valid question for the Senate to consider was whether Barrett was qualified. Even the deeply progressive-biased American Bar Association agreed that she was. I don’t know what the Times is trying to say: the Federalist Society wouldn’t have approved of an unqualified justice. “Anointed’ is just cheap Times rhetoric meaning “conservatives tended to agree with her jurisprudence,” just as progressives approved of the late Justice Ginsberg. Both had to excel during tough questioning in their confirmation hearings. Neither was “anointed.” The editorial board is pandering to its readership’s hysterical biases against conservatives….
The complaint about lower court judges is so disingenuous it’s embarrassing, but then so is the entire screed. It is false history: Senate Democrats would have had the filibuster at their disposal to block this President’s nominees, but Democratic Senate leader Harry Reid eliminated that long-standing tool so Obama’s ultra-liberal judges could take the bench.
Meanwhile, conservatives were furious at this right-leaning Supreme Court after it extended discrimination protection to LBGT Americans in the June ruling authored by that evil Justice Gorsuch.
Then there is the brilliant prediction about Obamacare, which was discussed in Part I.
“The process also smacked of unseemly hypocrisy. Republicans raced to install Judge Barrett barely one week before a national election, in defiance of a principle they loudly insisted upon four years ago.”
No, the hypocrisy was all on the other side, and the Times knows it. Democrats screamed that the sidelining of Obama’s nomination was dirty if legal politics, and nobody doubted that that’s what it was. Democratic officials, pundits, professors, lawyers, ethicists like me, and the New Yotk Times, we all declared it wrong and misguided. The sainted RBG even condemned the tactic. Yet here was the same party that most of those critics supported arguing that the process they rightly condemned should become the new “norm,” which they would not have claimed if a President with a “D” beside his name was in Trump’s position.
The New York Times is estopped from pointing the hypocrisy finger.
“The elevation of Judge Barrett to be the nation’s 115th justice was preordained almost from the moment that Justice Ruth Bader Ginsburg died last month. When she takes her seat on the bench at One First Street, it will represent the culmination of a four-decade crusade by conservatives to fill the federal courts with reliably Republican judges who will serve for decades as a barricade against an ever more progressive nation.”
“Ever more progressive nation” is wishful thinking at best. Unlike today’s progressives, much of the nation still thinks we ought to be governed by the Constitution, for example.
“…It was never about letting the American people have a voice in the makeup of the Supreme Court. That’s what Mr. McConnell and other Senate Republicans claimed in 2016, when they blocked President Obama from filling a vacancy with nearly a year left in his term. As of Monday, more than 62 million Americans had already voted in the 2020 election. Forget the polls; the best indicator that Mr. McConnell believes these voters are in the process of handing both the White House and the Senate to Democrats was his relentless charge to fill the Ginsburg vacancy.”
Yes, yes, we know that, as I just said. The Supreme Court is not an elected body, however, and intentionally so. It is a crucial firewall against the occasional insanity, ignorance, stupidity and cruelty of a public that typically can’t name half of the amendments in the Bill of Rights. the institution reflcts the Founders’ concerns about the flaws of democracy.
And if McConnell believed that the election would hand the Senate to the Democrats, whose fake news made him believe that?
“It was never about fighting “judicial activism.” For decades, Republicans accused some judges of being legislators in robes. Yet today’s conservative majority is among the most activist in the court’s history, striking down long-established precedents and concocting new judicial theories on the fly, virtually all of which align with Republican policy preferences.” Once again, this is as hysterical as it is untrue. The Times’ own legal analyst pronounced the 2020 term substantially centrist. So does the analysis in this bipartisan podcast.
I’ll complete the defenestration of the Times editorial when Part 2 continues…