Ellwood Sanders is a regular contributor to Virginia Right, a conservative blog edited by Tom White. Yesterday he posted an article criticizing Leslie Cockburn and Chuck Schumer for having “perverted legal questions into political ones.” It seems Cockburn tweeted that the Trump Administration demonstrated its “lack of respect for states’ rights and Virginians’ health.,” and Schumer pointed out that the Bret Kavanaugh nomination “would put a dagger through the heart” of Democrats’ belief that health care is America’s number one issue.
This is pretty bog-standard right-wing blogging, with all the projection and terrible logic one often finds. So of course I had to post a comment:
Whether or not Virginia’s uranium mining ban violates the Atomic Energy Act of 1954 is certainly a legal question. But the decision to file a friend of the court brief arguing that it does is a political one. A Democratic administration would likely have chosen not to. Cockburn is right to point this out.
And Schumer is right to point out that a conservative Supreme Court is more likely to strike down existing or future progressive legislation. For all their talk about “legislating from the bench,” it’s conservatives like Mitch McConnell and anti-abortion activists who have most recently politicized the Supreme Court. If the right in fact only wants “qualified judges” on the SCOTUS, Merrick Garland would have a seat.
Conservatives understand that majorities of Americans favor progressive policies like protecting the environment and access to health care. They know Americans by and large also oppose conservative ones like tax cuts for the wealthy and restricting the right of women to reproductive health care. And they know all too well that they can win at the polls only by rigging the system through voter suppression or gerrymandering. So they pack the courts with conservatives to protect their anti-democratic efforts to choose their voters. But they also know that this won’t work forever, so they also need to pack the courts to block progressive legislation when their hold on power finally ends.
In the end, the Supreme Court is no less a political branch of government than Congress or the Executive – it’s just the one designed to protect minority groups and the system itself from attack by the popularly elected Congress and President. Indeed, the Court routinely answers core political questions about the scope of legislative and executive power, and conservatives appeal to this branch as often as liberals when they think Congress or States have exceeded their authority. If the right didn’t believe this, they would not work so hard to pack the court system with judges that agree with them on the issues.
I’ve met Tom White and he’s a nice guy, if a bit libertarian for my taste, and occasionally I’ll read something at Virginia Right that makes sense. This was not one of those occasions.