The fight to confirm Amy Coney Barrett is a fight over the role of the Supreme Court
Democrats, especially the media wing of the Democrat Party (CBS, NBC, ABC, CNN, MSNBC, N.Y. Times, WaPo, etc.), will attack Judge Amy Coney Barrett because they believe she will be a vote to overturn Roe v. Wade and Planned Parenthood v. Casey.
She will also clarify and define the role of the Supreme Court to apply the Constitution as written (originalism) and statutes as written (textualism).
Abortion is now the religion and sacrament of the Democratic Party. It is difficult to understand in a rational manner why the Democrats have this obsession with killing the unborn.
Democrats lie that overruling Roe means that abortion will be illegal. Remember Teddy Kennedy's outrageous, unfounded smear against Judge Robert Bork:
"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids..."
As history shows, the midnight raid by rogue police was Special Counsel Mueller sending about 30 armed FBI agents to arrest Roger Stone.
The Democrats know that if Roe is overruled, the issue of abortion returns to each state for each state to deal with. Overruling Roe means that there is no constitutional right to abortion. Each state can then legislate on abortion. Many states, such as California, New York, and most of the states governed by Democrats, will allow abortion. For example, New York passed an abortion law allowing abortion at any time if the mother's health is endangered. Governor Cuomo signed the bill to a cheering Democratic-controlled Legislature.
Overruling Roe and Casey does not mean abortions will be illegal.
So why do the Democrats attack and smear honorable judges such as Bork, Thomas, Alito, Kavanaugh, and next Amy Coney Barrett?
Democrats use abortion as a symbol to raise money for their candidates, to energize their base of Hollywood and radical feminists, and to mislead voters to believe that abortion will be illegal if a judge who believes in originalism is confirmed.
Moreover, Democrats oppose judges who believe in originalism to interpret the Constitution and textualism to interpret statutes passed by Congress and state legislatures. Democrats favor a "living Constitution" approach to interpret the Constitution.
Textualism means "a text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably to contain all that it fairly means."
Originalism means the original meaning of the Constitution.
"Living Constitution" means that the Constitution "evolves, ... grows and changes from age to age to meet the needs of a changing society"
See A Matter of Interpretation, Federal Courts, and the Law by Antonin Scalia, Princeton University Press, 1997, pages 23–39.
A living Constitution approach allows a Supreme Court justice to impose his view of what the Constitution should mean today as opposed to what the words of the Constitution meant when written. Democrats prefer this method because it allows the Court to bypass Congress and state legislatures to determine what the law should be today.
For example, Roe and Casey removed the issue of abortion from the state legislatures and Congress to deal with abortion. It left to the Supreme Court to review and decide any law dealing with abortion, such as notice to parents if a minor wants an abortion.
The living Constitution approach contradicts the federalism structure of our Constitution. We have three branches: Congress, presidency, federal court. "Living Constitution" allows the Supreme Court to use its judgment about what the Constitution should mean today. If the Constitution needs to be changed, then there is the process of amendment provided in the Constitution.
Further, Congress or state legislatures can pass laws to meet current issues and problems without the Supreme Court finding a constitutional right to address current issues.
For example, the Fourth Amendment prohibits unreasonable searches. It does not say that if there is an unreasonable search, then the evidence obtained by the unreasonable search is excluded at trial. The Supreme Court decided that the penalty for a violation of the Fourth Amendment is to exclude the evidence from trial, like excluding a confession obtained without being advised of right to an attorney and right to remain silent. This is the exclusionary rule.
One can reasonably differ on whether this should be, but the Supreme Court took it upon itself to legislate the remedy for violation the Fourth and Fifth Amendments instead of leaving it to Congress.
Abortion is the symbol of the living Constitution approach, where Justice Blackmun in 1973 found a constitutional right to abortion based on the right of privacy and then proceeded to write as a legislator on at what stages in the pregnancy the state has an interest in protecting the unborn child.
Abortion is now the litmus test for the leftist Democrats to attack nominees such as Amy Coney Barrett. They will attack her as a devout practicing Catholic, unlike the cafeteria Catholics like Biden, Pelosi, and Cuomo. They charge she will vote to overturn Roe and Casey because of her Catholicism. It does not matter to them that a justice may and should vote to overturn Roe and Casey because Roe and Casey are not sound constitutional decisions, but naked political legislative decisions. For Barrett or others to oppose Roe and Casey must mean they oppose them because of their religion. So the Democrats will attack her religion.
The living Constitution approach is undemocratic because it removes power from the Legislatures elected by the people and gives that power to the courts.
The modern Democratic Party is not interested in the democratic process where the people, through their elected representatives, make law. These leftists prefer political judges they can control to make law using the living Constitution. It explains the smear campaigns against judges who believe in originalism and textualism.
They want to scare judges, scare potential nominees, and "pack the Court" to appoint additions justices to outnumber justices such as Alito, Kavanaugh, Gorsuch, Thomas, and now Amy Coney Barrett.
In sum the Democrats use abortion to attack and defeat nominees who oppose the living Constitution.
The Democrats and their media cheerleaders will smear a decent, intelligent, honorable woman, Amy Coney Barrett, for political purposes.
Image credit: The All-Nite Story via Wikimedia Commons, CC BY-SA 2.0.