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.