Amy Coney Barrett opening statement

Amy Coney Barrett has released her opening statement to the Senate Judiciary Committee, which will begin hearings tomorrow on her nomination to the Supreme Court. The two most important paragraphs, in my opinion, are the following (emphasis mine):

I also clerked for Justice Scalia, and like many law students, I felt like I knew the justice before I ever met him, because I had read so many of his colorful, accessible opinions. More than the style of his writing, though, it was the content of Justice Scalia's reasoning that shaped me. His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were. Sometimes that approach meant reaching results that he did not like. But as he put it in one of his best-known opinions, that is what it means to say we have a government of laws, not of men.

and

Courts have a vital responsibility to enforce the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try.

As I have written in other posts, I fully agree with this position. Policy ought to be the exclusive providence of elected representatives. If the law is incorrect, Congress should repair or repeal it – it is not the providence of unelected judges to “revise” or “re-interpret” or “repair” laws to fit their own ideological leanings. The fact that Congress is sometimes slow to act, or thoroughly dysfunctional, as it is right now, does not in any way change this.

And in fact that might indeed mean that someday Roe vs Wade might get overturned. Even Justice Ginsberg, a staunch liberal who was a strong supporter of abortion rights, agreed in public that the Constitutional basis on which it was decided (the “right to privacy” imputed to the due process clause in the fourteenth amendment, even though “right to privacy” is not mentioned at all in the amendment) was highly questionable.

For those who are interested, the actual wording of that clause is:

 "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

As you can see, it is a pretty big stretch from that wording to some Constitutional “right to privacy”, and then another big stretch to get from “right to privacy” to Roe vs Wade.  This is a case where I agree with Justice Ginsberg on the outcome but think the Constitutional basis for the ruling was pretty thin.

I actually don’t think it is very likely that the Court will overturn this ruling, even if Barrett joins the Court, but if it does, it will be because the Constitution, as written including amendments, provides no legal basis for this ruling, nor are there any federal laws passed by Congress that support it. There ought to be. I support abortion rights, and think the imposition of an abortion ban is an illegal imposition by federal law of a religious belief, which is explicitly forbidden by the Establishment Clause of the First amendment to the Constitution, and ought to be the real Constitutional basis for a Roe vs Wade-type ruling.

Commander’s intent

I have an abiding interest, for some strange reason, in submarine operations. I have worked for decades with active and retired Air Force and Marine people, but never much with Navy personnel. Still, I find submarine operations fascinating, perhaps because they are so precarious (submariners are in constant danger – mistakes so often tend to be fatal), or perhaps because submarines face the daunting intellectual challenge of fighting in a battlefield in which they are largely blind, putting a premium on situational awareness and deductive inference.

The concept of “commander’s intent” is found elsewhere in the military, but never quite as prominently as in submarine operations. Watch YouTube videos of operations on current generation submarines and you will from time to time see the captain tell his entire control room crew “My intention is to ….”, before issuing the first orders to achieve that intent.

Why is this important? Because once everyone in the control room understands exactly what the commander is trying to achieve, they can use their own initiative to help him achieve that objective, and they now know what to warn him about immediately if something looks like it might impede achieving that objective.

This is a simple concept, but a very powerful one that many non-military endeavors could use profitably. Just issuing orders without giving the context - the commander’s intent - of those orders is inefficient, because subordinates have no way of using their own initiative help achieve that intent; they must just follow orders instead of functioning as a cohesive team.  But it is far too often the way corporations and other operations function.

Submarines are immensely complex, and they can only operate if every member of the crew function as a team, because almost every member of the crew holds the lives of the rest of the crew in their hands, whether they are in the torpedo room, the reactor room, the environmental (oxygen generation) compartment, the (tiny) kitchen, or the control room. A mistake in almost any part of the submarine imperils everyone. That dependence forces the teamwork.

Lots of other endeavors, not so fraught with danger, would be much improved if everyone involved functioned as a team. But that requires the leader (the commander) to treat his subordinates as a team, to give them enough information about his/her intention and then to trust their initiative to help achieve that intent. This requires a submerging of ego that lots of leaders find hard to achieve. Too bad. It works wonderfully in submarines. It ought to get used more often elsewhere.

Amy Coney Barrett as a Catholic

Democrats are making much of the fact that Supreme Court nominee Amy Coney Barrett is Catholic, apparently fearing that her Catholic faith will lead her to overturn Roe vs Wade. I guess they don’t know that five of the current Supreme Court justices are Catholic too, as are 30% of the members of Congress. For that matter, their own nominee for president, Joe Biden, is a Catholic. So how come they are worried about Barrett but not about Joe Biden or Justice Roberts or Justice Sotomayor or Justice Alito or Justice Thomas or Justice Kavanaugh? Clearly this is just an attempt, and a feeble one at that, to scare up support among their base.

In fact Barrett is a textualist, as was her mentor Justice Scalia, ruling on what the text of a law says instead of on some “creative expansion” of the text to achieve some ideological end. Textualists believe (and I agree with them) that it is not the job of the unelected judiciary to create legislation; that power is absolutely reserved to elected representatives. It is true that many laws are defective as written, or ambiguous, or no longer applicable in a changing world. The remedy for that is for elected members of the legislature to rewrite the laws, or kill them, or correct them. That is emphatically NOT the job of the judiciary.

Similarly, “originalist” judges refer to the Constitution as their guide. Again, it is not the job of judges to “re-interpret” the Constitution. Yes, the Constitution is a living document, and parts of it get out of date. We have a process that addresses that fact – it is called “Constitutional amendments”, and we have since the writing of the original Constitution passed 27 of them.  They are not easy to pass, and they shouldn’t be. It takes the agreement of three-quarters of the states to pass a Constitutional amendment so there has to be broad agreement among the voting public to make such a change. That is healthy. It prevents some temporary majority from forcing their ideological views down the throats of the country.

Congress is currently dysfunctional and incapable of doing their job. Which means that lots of things that ought to be happening are not happening. The remedy for that is to fix Congress, not to try to bypass it through the judiciary. And even when Congress is working well, some things just can’t get enough support to get passed. Again, the solution is not to bypass Congress through the judiciary, but instead to do the hard work of educating people and trying to build support among the voting public for whatever principle one is selling.

I have no idea how Barrett will vote on the cases she will see, nor does anyone else. But she is bright, eminently qualified, and highly-thought-of by her peers.  I thought it was telling that every one of the Supreme Court clerks with whom she worked when she was Justice Scalia’s clerk signed a letter supporting her – every one, even though they must span the political spectrum from liberal to conservative.