Judge Amy Coney Barrett claims to have no preconceived decisions about the cases she might hear in the Supreme Court. She says she doesn\u2019t have an \u201cagenda\u201d when it comes to healthcare, women\u2019s and voting rights, gun control or the power of corporations in the United States. And yet, Democrats are continually claiming that she will find against the Affordable Care Act, overrule Roe v Wade, allow for voter suppression, and protect gun and corporate interests.<\/p>\n\n\n\n
We also know that President Trump has made it clear he won\u2019t appoint a Justice to the Supreme Court that supports the Roe v Wade decision, the Affordable Care Act, or would rule for those other things. So who is right: the Democrats, the President, or the Judge? And if the Democrats and the President are correct, then is the Judge, an acknowledged legal \u201csuper-star,\u201d lying to America?<\/p>\n\n\n\n
Well, kind of.\u00a0\u00a0The Judge states, over and over again, that she will be fair arbiter of the law, and determine each case as it is presented to her.\u00a0\u00a0She repeats Chief Justice John Robert\u2019s famous qoute. Barrett says she will be an umpire not a player, just calling \u201cballs and strikes\u201d.\u00a0\u00a0She won\u2019t make what she considers \u201cpolicy decisions\u201d, just arbitrate what \u201cthe law\u201d means.<\/p>\n\n\n\n
I\u2019m not a baseball \u201cguy\u201d. I coached other sports: Track, Cross Country and Wrestling during my teaching career. But rather than make my more familiar (to me) pole-vaulting analogies, let me use one that most Americans understand. In baseball, the pitcher has to throw to the batter, and give the batter an opportunity to hit the ball. If the ball goes through the \u201cstrike zone\u201d and the batter fails to swing at it, or misses the ball, then the batter receives a \u201cstrike\u201d. Three strikes, and the batter loses his turn at bat, and is called \u201cout\u201d. If, on the other hand, the pitcher either fails to put the ball \u201cover the plate\u201d or throws the ball too high or too low, then it is out of the strike zone, and the batter receives a \u201cball\u201d. Four balls and the batter is allowed to advance to first base.<\/p>\n\n\n\n
The umpire\u2019s job is to be the neutral arbiter of whether the pitch was in the strike zone or not.\u00a0\u00a0Whether it\u2019s a fastball, a slider, a curve or a change-up, it is the umpire\u2019s role to call \u201cstrike\u201d or \u201cball\u201d.\u00a0\u00a0And we all have a common knowledge where the strike zone is. It goes from above the batter\u2019s knees to below his shoulders.\u00a0\u00a0To quote that outstanding source of American sports rules, Wikipedia:\u00a0\u201cThe strike zone is defined as the volume of space above home plate and between the batter’s knees and the midpoint of their torso\u201d.<\/em><\/p>\n\n\n\n But baseball aficionados tell us, that different umpires have different perceptions of where that volume of space really is. It might, for a particular umpire, start at the batter\u2019s waist and go to his shoulders. Other umpires see the bottom of the knees as the line, or the middle of the shoulders. So while the umpire is the \u201cneutral arbiter;\u201d how that umpire defines the strike zone will effect every pitch in the game. And since every pitcher and hitter are different, then each game will be shaped in part by the umpire\u2019s both perceived and actual vision.<\/p>\n\n\n\n It doesn\u2019t mean that the umpire is \u201ctaking sides\u201d. He simply would say, \u201cI calls \u2018em as I sees \u2018em\u201d. And that\u2019s what Judge Amy Coney Barrett will do.<\/p>\n\n\n\n In Constitutional Law there are those who call themselves \u201coriginalists\u201d or \u201ctextualists\u201d. These judges see the written words of the Constitution by their plain meaning to the original men who wrote them. The \u201ctext\u201d is written with the \u201cintent\u201d of James Madison and the Constitutional Convention. Judge Barrett sees the law through this Constitutional \u201clens\u201d. <\/p>\n\n\n\n There are also those judges who see the words of the Constitution in their plain meaning, but through the realities of today\u2019s world.\u00a0\u00a0The universe of the Constitution\u2019s authors didn\u2019t include gender or racial equity, or automatic weapons.\u00a0\u00a0These judicial pragmatists see the words of the Constitution through the filter of today\u2019s realities.\u00a0\u00a0<\/p>\n\n\n\n For example, the Fourth Amendment states that: \u201cThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated\u2026\u201d<\/em><\/p>\n\n\n\n Originalists see that as a right against illegal searches of a person\u2019s body, their homes papers and effect.\u00a0\u00a0\u00a0Pragmatists see all that as true, but also the right to control what the government can do about physical bodies.\u00a0\u00a0This, for example, is applied when a woman can choose to have an abortion, something the Founding Fathers didn\u2019t directly speak to.\u00a0\u00a0It\u2019s a \u201cright to privacy,\u201d a pragmatic extension of the words. Originalists find that unacceptable.<\/p>\n\n\n\n Every Judge and Justice has there own vision of the \u201cstrike zone\u201d, the \u201clens\u201d through which they make judicial decisions.\u00a0\u00a0They may say that they don\u2019t have an \u201cagenda\u201d. But if you know their \u201cstrike zone\u201d then you can pretty much anticipate how they will make their \u201ccalls\u201d.\u00a0\u00a0Judge Barrett has stated over and over in her testimony to Congress that she has not \u201cmade policy decisions\u201d in the Court, nor would she in the future.\u00a0\u00a0But she has also said, over and over, that she will apply her judicial decision-making \u201cframework\u201d to the cases that she hears.\u00a0<\/p>\n\n\n\n That \u201cframework\u201d, her \u201cstrike zone\u201d, will determine her decisions.\u00a0\u00a0She is speaking truthfully when she says that she hasn\u2019t made a decision about the contentious issues in front of the Supreme Court. But she is still being disingenuous.\u00a0\u00a0The framework she espouses directs her thought process and determines the results.\u00a0\u00a0So the Democrats and President Trump are right, and Judge Barrett is \u2013 well \u2013 being \u201cjudicial\u201d.\u00a0\u00a0The end results are the same.\u00a0\u00a0To her, a \u201cstrike\u201d is a \u201cstrike\u201d, even though it\u2019s a \u201cball\u201d to someone else.<\/p>\n","protected":false},"excerpt":{"rendered":"The Pitch<\/h3>\n\n\n\n
Judicial Interpretation<\/h3>\n\n\n\n
The Framework<\/h3>\n\n\n\n