Dick Durbin's perverse argument against Amy Barrett

Sen. Dick Durbin (Brian Cassella / Chicago Tribune)

Sen. Dick Durbin (Brian Cassella / Chicago Tribune)

Perverse because Illinois Sen. Dick Durbin’s ignorance about the law, the Supreme Court and the Constitution is astonishing, and dangerous.

That ignorance was on full display today when he was making his opening statement in the Senate Judiciary Committee hearings into the confirmation of Appellate Court Judge Amy Barrett to the Supreme Court.

It has become a cliche that judges are not supposed to legislate from the bench; that’s the job of Congress and state legislatures that are elected by the people and that reflect the electors’ wills. The courts’ job is to follow the law as set by the legislative bodies. But it is necessary to repeat this fundamental principle of the Constitution so often that it has become a cliche–nevertheless one that is true.

Instead, Durbin tried to turn the hearing into a debate about policy–something that’s totally outside the judicial branch’s assigned purpose. In this, Durbin was a handmaid for the approach prescribe by the ideological left to turn the hearing into a debate over health care and, by implication, abortion. In essence, Durbin’s argument came down to: We must not confirm Barrett because most Americans favor Obamacare.

Arguing policy has been the preferred ploy of Democrats going back to when they crushed the nomination of Robert Bork because–gasp–he believed that courts should follow the law. The idea that Bork or Barrett would legislate from the bench by making law about healthcare, abortion and many policy issues is a lot of bunk because that is precisely what such judges disdain. In this, conservatives have been entirely consistent.

The always compliant Durbin did a fine job of reading what was written for him and committed high irony when he criticized Republicans for blindly following their leaders by agreeing to vote on the nomination prior to the next term. Nobody is better at following the leader than Durbin.

Durbin’s argument and that of his fellow ideologues is dangerous because it creates a competing legislative branch of unelected, lifetime members. Not at all accountable to the public will. In this, the Democratic standard for selecting high court justices is in itself supremely anti-democratic.


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  • You declare that "The courts' job is to follow the law as set by the legislative bodies." But you know that what you really believe is that the courts should apply the law you think the legislative body should have set. For example, if the Supreme Court decides that the Affordable Health Care law is unconstitutional, it will not be because of anything set by the legislative body. It will be a decision by unelected justices that Obamacare should be abolished. Oh, you will say, that is because it violates the fundamental law, the Constitution. But I don't think you can point to any text of the Constitution that makes the health care law unconstitutional. You just want it to be. Unfortunately, this court has often found "original" or "textual" meaning by a process of cherry-picking 17th to 19th Century history. If this is their task, we would probably be better off with historians on the Court, not lawyers.

  • In reply to jnorto:

    So, you can read my mind? I'm not arguing policy here. I'm arguing that the Supreme Court should not intrude into the legislative policy making role.

  • In reply to Dennis Byrne:

    So, if the Supreme Court strikes down the Affordable Health Care law it will "not intrude into the legislative policy making role" of Congress?

  • In reply to jnorto:

    That's not the same thing. The court decides if a law is constitutional.

  • In reply to Dennis Byrne:

    As I said in my first posting, you can't point to text in the constitution saying why the law is unconstitutional. So, if the Supreme Court decides it is so, it must be because of policy made by the court itself. We are all textualists--up to the point where the text does not answer the question. Judges can never be just umpires calling the balls and strikes.

  • In reply to jnorto:

    Just like you can't point to text in the constitution endowing a privacy rights applied to abortion.

  • In reply to Dennis Byrne:

    I have never claimed to be either a textualist or an originalist.

  • In reply to jnorto:

    What makes a law unconstitutional is often as much about what the Constitution does NOT say is about what is does say - the federal government is based on specifically ENUMERATED powers - when a law steps too far beyond what they've been empowered to do, it becomes unconstitutional - e.g., federal government mandating everyone buy a specific product comes to mind or be fined (or taxed) - that egregious overstep of authorized power isn't conveyed under the Commerce Clause or any other part of the Constitution

  • > he believed that courts should follow the law.

    No, he was a nut. Among other things, he felt that the Government should censor music/books/etc. Congress was rightly afraid of him.

  • Dick Durbin has always been an asshole. But then again, he's a Democrat dim-wit.

  • In reply to mancow:

    As we say in Illinois - Durbin is a dick!!

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