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Judge Barrett: An Originalist, Not a Conservative Activist

University of Notre Dame Law School via AP

I won’t pretend to be surprised by this, but Senate Democrats, knowing they don’t have the power to stop Judge Amy Coney Barrett’s confirmation to the Supreme Court, have turned the confirmation hearings into a campaign platform to smear President Donald Trump.

The Democrats’ approach to the hearings illustrates how disingenuous their professed commitment to preserve the integrity of “our democracy” is. Indeed, nothing better illustrates their failure to distinguish between a democracy and a constitutional republic than their misguided judicial philosophy.

The framers of our Constitution designed our system as a constitutional republic, not a democracy. As students of history and ancient democracies, they incorporated safeguards against pure democracy, which they knew could lead to mob rule. They aimed to maximize political liberty, and that required protecting the minority from the tyranny of the majority.

They divided and limited governmental power, as unrestrained governments tend toward tyranny. We all know the drill. They divided power between the federal and state governments (federalism) and distributed federal power among three separate branches of government (separation of powers).

They imposed an intricate scheme of checks and balances, pitting each branch against the other two to prevent any branch from becoming too powerful at the expense of the others and of individual liberties.

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They included the Bill of Rights, which contained further express limitations on government, and they created a bicameral legislature to retard the governmental process and insulate it against impassioned mobs. George Washington described the upper chamber as the “senatorial saucer” that would cool legislation passed in the more democratic House.

Just as all of these structural safeguards are essential to maintaining our liberties against authoritarianism and absolutism, so is our ongoing jealous protection of these safeguards.

We have two political branches whose members are elected, directly or indirectly, by the people and that pass laws and otherwise make policy and enforce the laws. The judicial branch is a nonpolitical branch that should interpret, rather than make, laws. Courts must not act as super-legislatures because their members are not democratically chosen, because they are more insulated from accountability to the people and because the judicial branch serves the important function of interpreting laws.

When appellate courts make laws instead of interpreting them, they thwart the will of the people who elected the political branches. They violate the separation of powers and undermine the very system that was carefully crafted to preserve our liberties. We’ve seen examples of this throughout history, but especially since the ’60s, where the Supreme Court, by fiat, employs elaborate legal fictions to strike down perfectly constitutional laws passed by the other two branches, or to uphold unconstitutional laws.

Democrats argue that Republicans are just as guilty as Democrats in seeking to install judges who will enact their policy agenda. Many Democratic senators alleged that Republicans support ACB because they want her to advance their policy agenda. According to them, the GOP needs Barrett on the court to eliminate Obamacare, abortion rights and same-sex marriage — and to rule in Trump’s favor if a legal challenge to the results of the upcoming presidential election arises.

Sen. Chris Coons said that ACB would open up a new chapter of conservative judicial activism, but that is simply false. Republicans don’t want judges to advance conservative policies but to interpret the Constitution according to its originally understood meaning. This could result in overturning liberal legislation and court-enacted laws if they are unconstitutional, but not otherwise. Liberal activists, on the other hand, do substitute their policy preferences for those of Congress and twist the Constitution to do it.

Examples of liberal activism abound, but you’d be hard-pressed to find one of conservative activism. Sen. Ted Cruz cited the example of school choice: Originalist judges wouldn’t mandate that all states have school choice, but leftist judges would prevent them from having it. If Roe v. Wade were overturned, conservative judges wouldn’t force states to outlaw abortions but would leave the question to their democratic determination.

Sen. Cory Booker said that replacing Ruth Bader Ginsburg with ACB would tilt the court further to the right. No, it would tilt the court further toward the Constitution, where it ought to be — and there’s a big difference.

It is not surprising that Democrats regard Barrett as a threat, given their reliance on unelected judges to usurp the lawmaking authority of the politically elected branches. But that is not how Republicans look at the judiciary, and if Democrats respected the separation of powers and truly wanted to protect the integrity of our republic, they would have nothing to fear from such stellar judicial nominees as ACB.

Democratic senators are campaigning from their senatorial perch instead of performing their duty of advice and consent. They are trying to scare voters into believing that ACB and other GOP-appointed judges will take away the people’s coverage for preexisting health conditions. Just like they continue to falsely accuse Trump of not having denounced white supremacy, they are misleading the people on health care, knowing that even if the court strikes down the Affordable Care Act entirely, Republicans have guaranteed that any replacement bill would include coverage for preexisting conditions.

Using all relevant criteria — judicial philosophy, qualifications, temperament and personal character — Judge Amy Coney Barrett is one of the most qualified Supreme Court nominees in our history. Adding her to the court will not threaten our liberties but rather greatly protect them.

David Limbaugh is a writer, author and attorney. His latest book is “Guilty by Reason of Insanity: Why the Democrats Must Not Win.” Follow him on Twitter @davidlimbaugh and his website at www.davidlimbaugh.com.

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