Comment: Who loses from the rush to confirm a 9th justice?

Take your pick: Democrats, Republicans, the Supreme Court and the American people, for starters.

By Kent Treadgold / For The Herald

The expected successful confirmation of Amy Coney Barrett to the Supreme Court could result in a catastrophe for all Americans.

It will be bad for Republicans. The hypocrisy and dishonesty exposed by comparing statements from 2016 with statements since the death of Justice Ruth Bader Ginsburg leave little doubt that they are placing party above country. Americans are facing evictions, foreclosures, food insecurity, education and childcare issues, and loss of jobs. Leaving town during this crisis but returning to fill a court vacancy in record time is not something most voters will appreciate. Ask Sen. Lindsay Graham, R-S.C., who said, “I guarantee you that we will not move forward on a nomination in 2020, and you can use my words against me.” His opponent just set a national record for most money raised.

House Majority Leader McConnell,R-Ky., insisted in “letting the people decide” in 2016. He said his proudest moment was when he told President Obama that Judge Merrick Garland would not get a hearing. Garland was a moderate 63-year-old with more appellate court experience than any Supreme Court nominee in history. With a majority of Americans believing the current action is wrong, Republicans are not even paying lip service to democracy or fairness.

It will be bad for Democrats. Outrage provides strong motivation for action. Sooner or later Democrats will respond to Republican excesses with potential Democratic excesses.

Both Republicans and Democrats know that the best decisions are determined by vigorous debate between competing ideologies. They demonstrate knowledge of this repeatedly by passing legislation that requires many agencies or committees created to be bipartisan. The National Labor Relations Board and the Federal Election Commission are ongoing examples. The 9/11 Commission is one of many examples of temporary bipartisan panels.

It will be bad for the country. We are facing many serious challenges. In a bipartisan age, with only 6 percent of the world’s population, we promoted our will on the globe during World War II. In the fifteen years after, we helped friends and foes alike by orchestrating a global economic recovery. When we unite, we are capable of prodigious accomplishments.

A return to a unified America requires Republicans and Democrats to place country before party. They need to operate with respect, transparency and understanding, not plotting, scheming and demonizing the other side.

It will be bad for the Supreme Court. It is not necessary since there is already a majority of conservative judges nominated by Republican presidents on the court. If the court faces a case that can be decided fairly by the conservative majority, they already are capable of doing so.

More importantly, we need far more diversity of ideas on the court than this nomination provides. Judge Barrett would be the sixth justice who is a current or former member of the Federalist Society. She would also be the sixth justice who is a member of the Catholic Church.

There are many problems with this acute lack of diversity. Packing the court with justices that subscribe to one limited view of the law and the Constitution will cause many Americans to doubt that the court can act fairly. We all need to be able to trust that the umpires are calling balls and strikes unbiasedly.

Law Professor Cass Sunstein wrote a book in 2008 called “Why Societies Need Dissent.” Sunstein’s book documents how any group of people, from corporate boards to investment clubs to panels of judges, are more successful and less prone to err when there is strong diversity within the group.

Not only are homogeneous groups more prone to err, they are more prone to extremism. In Sunstein’s book he describes how appellate courts that had a mix of Republican and Democrat members were far more moderate than courts comprised of just one ideology. He also described how a group of like-minded people will actually become more radical in a group resolution than any of them would individually. It seems that like-minded people deciding an issue together move to the extreme when getting principally positive feedback.

If the court keeps a 5-4 balance, they will be less prone to err and more prone to display Solomonic wisdom. This is what is absolutely required at the court of last resort.

No one in Washington state is going to have much influence on senators from conservative or swing states, but many of you can contact your friends and relatives who live in states where their voice can make a difference. Urge them to act. For me, if this happens, I will boycott any and all things from Kentucky.

Kent Treadgold is retired, having taught at Explorer Middle School in Everett for 19 years.He lives in south Snohomish County.

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