A26 THURSDAY, OCTOBER 15, 2020
YTO THE EDITOR:
Amy Coney Barrett promises to
“apply the law as it is written” and
leave policy decisions to the other
branches of government. If that’s
all judges need to do, we’d have no
need for judges.
As Justice Oliver Wendell
Holmes observed, the law, the
Constitution above all, is not a set of
“mathematical formulas.” Most
questions of law, particularly at the
appellate level, come down to
claims of competing rights that
judges are called upon to balance
with sensitivity, rigorous analysis
and an appreciation for their actual
consequences to society at large.
Judges judge, which is why their
personal philosophies matter — and
inescapably determine policy,
whether they admit it or not. As
Holmes astutely observed, judges
who deny they are settling policy
questions in their decisions are
more likely to import their personal
prejudices into the law than those
who forthrightly acknowledge this
obvious fact, and openly explain
their reasoning.
STEPHEN BUDIANSKY
LEESBURG, VA.
The writer is the author of “Oliver
Wendell Holmes: A Life in War, Law,
and Ideas.”TO THE EDITOR:
There is nothing to stop the ap-
pointment of Judge Amy Coney
Barrett as the next associate justice
of the Supreme Court. We progres-
sives are just going to have to buck
up and get over it. Mitch McConnell
snookered us.
Let’s face it: If Democrats had
given any serious consideration to
the possibility of a Trump victory in
the 2016 election, we’d have been
protesting outside the Capitol every
day for months to demand a hear-
ing for Judge Merrick Garland.
Instead, we let the Senate majority
leader get away with it. Our bad.
Now, I suggest we accept the
outcome and move on. Instead of
counting on the Supreme Court to
legislate for progressive causes,
let’s demand that Congress legis-
late. Passing well-crafted laws, as
long as they don’t run afoul of the
Constitution, is the surest way to
advance the progressive agenda.
There is nothing stopping Con-
gress from acting to limit climate
change, protect the right of same-
sex couples to marry, protect the
Dreamers and pass immigration
reform.
I believe that Democrats should
resist all temptation to escalate the
partisan warfare. Just say no tocourt packing. Take the high road,
and we’ll be able to look ourselves
in the face. Can Mr. McConnell?CHRISTOPHER PEACOCK, DALLASTO THE EDITOR:
The Democrats’ strategy opposing
Judge Amy Coney Barrett’s confir-
mation is clear: raise the boogey-
man that she will overturn the
Affordable Care Act and millions
will immediately lose their health
insurance coverage. Nonsense.
First, the case before the court
next month raises a different issue
than the one Chief Justice John
Roberts decided and she criticized.
Second, she hasn’t read the briefs
or heard oral arguments, and thus
no one can predict her vote. Third,
the court can strike the offending
provision at issue and keep intact
the provisions that the Democrats
are wailing about, such as coverage
for pre-existing conditions.
Finally, in the unlikely event the
law were to be struck down in its
entirety, the court can, and likely
will, stay its decision to allow Con-
gress time to remedy the statutory
defect as it has done in other cases.
In short, the Sturm und Drang
prediction by the Democrats re-
garding Judge Barrett’s future
ruling on the A.C.A. sounds a false
note.
PAUL KAMENAR, CHEVY CHASE, MD.
The writer is counsel to the National
Legal and Policy Center.TO THE EDITOR:
For the first time in a long time, the
possibility of Roe v. Wade being
overturned is very real.
I’ve always been pro-choice, but
never thought that landmark deci-
sion would have an effect on my
life. Then in June 2016, I found out
the very wanted, very loved baby I
had been carrying for almost 21
weeks was sick. The doctors told us
the baby was “incompatible with
life.” We knew what we needed to
do. We made the heartbreaking
decision to end the pregnancy.
This was the hardest decision we
have ever had to make, but it was
our decision. Many people, includ-
ing some in my own family, did not
agree with it. We chose to save our
child from a very short existence
filled with hospitals and pain.
I’m asking that our representa-
tives ask Amy Coney Barrett the
hard questions and not allow even
the possibility of Roe v. Wade to be
overturned. The government has no
business making personal decisions
such as these for us.
EMILY LOPEZ, ELGIN, ILL.Issues Raised by the Barrett Hearings
LETTERSTO THE EDITOR:
Re “Racism in the Principal’s Of-
fice: Seeking Justice for Black
Girls” (front page, Oct. 2):
In New York City, in the year
2020, a girl who defends her friend
in a fight can be charged with a
felony for gang activity, sending
her to detention and a lifetime of
consequences.
Thank you for shining a light on
the unfair punishment meted out
in the school system to young
Black and brown girls, who have
for generations been the target of
neglect, surveillance and punitive
discipline policies for being “loud”
or “threatening.”
Every day at the youth organiza-
tion I run, we teach our students a
survival skill: code switching. For
them, changing how they presentthemselves to society — from body
language to wardrobe to speech —
can keep them alive, employed and
free.
I look forward to the day when
fashion choices and “sassy” atti-
tudes are accepted for what they
really are: an expression of
strength, independence and spirit.
I look forward to the day we stop
silencing, penalizing and incarcer-
ating our girls of color, and start
listening to what they are telling us
and give them the same opportuni-
ties and respect as their white or
white-passing peers.
GISELE CASTRO, NEW YORK
The writer is executive director of
Exalt, a nonprofit that works with
teenagers who have been involved in
the criminal justice system.Stop Persecuting Black and Brown Girls in School
IT WAS A BITof news that came and went
quickly amid the fury of political develop-
ments these days, but last weekend Jaime
Harrison, the South Carolina Democrat
who is fighting to unseat Lindsey Graham,
announced that he had not merely broken
the record for fund-raising for a Senate
candidate in a single quarter. He had shat-
tered it.
From July through September, Harri-
son took in about $57 million. That was
nearly $20 million more than Beto
O’Rourke, the previous record-holder, col-
lected during the same span two years
ago, when he waged his ultimately unsuc-
cessful battle against Ted Cruz in Texas.
“I pinch myself,” Harrison said when I
spoke with him on Tuesday night. “Good
Lord.”
He’s the recipient of so much money be-
cause he’s the vessel of so much hope.
While he may not have the nationwide
celebrity that O’Rourke attained in 2018
and South Carolina is much smaller than
Texas, the themes in Harrison’s challenge
of Graham are as big as can be.
No other political contest in 2020 offers
quite the same referendum on the ugli-
ness of Donald Trump’s presidency. No
victory would rebut Trump’s vision of
America as emphatically and powerfully
as Harrison’s would.
Harrison would be the first Black Dem-
ocrat to be elected to the Senate from the
Deep South. The only Black Republican in
the Senate, Tim Scott, is also from South
Carolina. So South Carolina — where
about 40 percent of the enslaved Africans
brought to North America arrived, where
the Civil War began and where a 21-year-
old white supremacist named Dylann
Roof killed nine Black churchgoers in
their house of worship in 2015 — would
have two Black senators and would be the
only state with an all-Black Senate delega-
tion.
How’s that for an answer to Trump’s
racism and for a stirringly inspirational
turning of the page?
Harrison noted that the Senate seat
that he is seeking was once held by John C.
Calhoun, an infamous defender of slavery.
“This was the seat of Benjamin Tillman,
who would go to the floor and talk about
the joys of lynching,” he added. “This was
the seat of Strom Thurmond,” who took a
leading role in opposing civil rights legis-
lation.
Harrison, 44, rose from a mobile home
to college at Yale, law school at George-
town and the distinction of being the first
Black chairman of the South Carolina
Democratic Party. He also worked for
Representative James Clyburn, the South
Carolina lawmaker who played a key role
in salvaging Joe Biden’s beleaguered
presidential bid by rallying Black voters
to the former vice president.
South Carolina turned Biden’s cam-
paign around. Is it about to set the national
tone again?
“If Jaime is to win, then this is the most
thorough rebuke of Trumpism that we’ve
seen,” Bakari Sellers, a former state legis-
lator in South Carolina, told me. “It also re-
stores a lot of people’s faith in the basic hu-
manity of this country.”
And it’s no pipe dream. While I wouldn’t
bet on a Harrison victory — not in a state
that Trump won by 14 points in 2016 and
that still seems to be safely in his column
— some political handicappers now con-
sider the Harrison-Graham race a tossup.
Several recent polls show the men effec-
tively tied. Harrison’s financial advantage
is overwhelming. And he has been able to
blanket the state in ads — excellent ones
at that — while Graham has struggled to
keep up.
Graham craved this week’s hearings on
Trump’s Supreme Court nominee, Amy
Coney Barrett, because, as chairman ofthe Senate Judiciary Committee, he’s get-
ting oodles of free television exposure just
when he needs it. He’s surely also betting
that his role in elevating another conser-
vative justice will please many South Car-
olina voters and shift their attention from
his breathtaking inconstancy.
He once vowed that he’d never consider,
let alone promote, a Supreme Court nomi-
nee put forward in the last year of a presi-
dent’s term, telling journalists to mark his
words and use them against him if the
need ever arose. The need sure did.
He once railed that the way to make
America great again was to “tell Donald
Trump to go to hell.” Now he’s Trump’s
adoring golf buddy. Does that mean Gra-
ham is a fairway-weather friend? It cer-
tainly means that his convictions have all
the weight of whipped cream.
One of the main story lines of the Trump
years has been the spectacular moral ca-
pitulation of most Republican lawmakers,
who junked supposedly cherished princi-
ples to placate a president whose hold on
his base and capacity for vengeance mat-
tered more to them than honor, than patri-
otism, than basic decency. Graham is theposter boy of that surrender, Complicitus
Maximus, in part because his 180-degree
turn to Trump required that he show his
back to his close friend and onetime hero
John McCain.
Graham’s defeat by Harrison would be
more than a personal comeuppance. It
would be a morality play. And so, just as
the unprecedented contributions to
O’Rourke owed plenty to the nastiness of
Cruz, the even bigger contributions to
Harrison speak to the noxiousness of Gra-
ham.
“Lindsey Graham is, next to Mitch Mc-
Connell, the most attractive target for the
left to take down,” Todd Shaw, an associate
professor of African-American studies
and political science at the University of
South Carolina, told me.
Harrison conceded that a significant
measure of his traction in this race is at-
tributable to “the fever about Lindsey
Graham,” who personifies what voters
dislike most about politicians. “So many
people thought so highly of him, and to
have him betray that trust has added an
extra layer of passion,” Harrison said.
He added: “The country is simply tired
of being divided. They’re tired of the cha-
os. They’re tired of the racialized rhetoric.
One of the things I say, tongue-in-cheek, is
that we need a national holiday after this
election so that all of us can sit on a coun-
selor’s couch for a few hours. We all just
need that reprieve.”
Jessica Taylor, who analyzes Senate
races for the nonpartisan Cook Political
Report, told me that Graham’s predica-
ment was neatly illustrated by a surpris-
ing recent development: “He started run-
ning a biography ad this past weekend.”
That suggests that he’s concerned about
his likability and needs to reintroduce
himself to his constituents. “That’s not the
kind of ad you run if you’ve been in Con-
gress for 25 years,” Taylor said.
Like other prominent political analysts,
she favors Democrats, who are currently
at a three-seat disadvantage, to regain
control of the Senate. She gives them the
clear edge to defeat Republican incum-
bents in Colorado and Arizona, and she
puts seven other races with Republican in-
cumbents, including Harrison’s, in the
tossup category.
One of those races, in Georgia, also in-
volves a Black Democratic challenger, Ra-
phael Warnock, the senior pastor at Ebe-
nezer Baptist Church in Atlanta. He’s try-
ing to unseat Senator Kelly Loeffler, and if
both he and Harrison were to win, there
would be two popularly elected Black
Democratic senators from the Deep
South, where there had never been any
before. 0FRANK BRUNI
Chasing a Democratic Dream in South Carolina
A Senate race could
offer a rebuke of Trump’s
vision of America.
MICAH GREEN/BLOOMBERGI SPENT ABOUTan hour over the weekend
filling out my ballot for the 2020 general
election. As an immigrant from a country
where elections were not free until 1994, I
understand the privilege of the franchise.
Every two years, when it’s time to vote in
national elections, I rip open my voting
packet with a sense of sacred, nerdy seri-
ousness. I’ll even study the positions of
the candidates for school board. But by
the time I finish filling in all the bubbles, I
am bitter and angry, weighed down by
the pointlessness of the whole exercise.
Because I’m in California, the coun-
try’s most populous state and its biggest
economy, my vote in The Most Important
Presidential Election of Our Lifetime is
hardly worth the paper it’s printed on.
The roots of my despair are well
known. There is the Senate, which gives
all states equal representation regard-
less of population, so voters in Wyoming,
the least populous state, effectively enjoy
almost 70 times more voting power than
us chopped-liver Californians. And there
is the winner-takes-all Electoral College,
in which a tiny margin of victory pays off,
with the whole pot of electoral votes go-
ing to the winner. This means that mil-
lions of presidential votes, from both Re-
publicans and Democrats, are effectively
wasted — all the votes cast for the loser in
each state and all the excess ones cast for
the winner.
I am not here to argue over the merits
of these rules.
But I would like to speak up for all of us
scorned voters.
I have voted in every federal election
since 2000, and not once do I remember a
presidential candidate ever making an
effort to get my vote. This year, I feel
worse than ever. Though I am as stressed
out as anyone about the outcome, the
election often seems to be happening in
some other country, where the voters live
different lives from me, the candidates
don’t care about the issues that matter to
me.
We have had a tough time lately in the
Golden State. You might have heard. Be-
yond the pandemic — nearly a million
Californians have been infected by the
coronavirus, and more than 16,000 have
died — millions of Californians have had
to endure months of raging wildfires and
extremely unhealthy air quality.
Climate change-related disasters havecompounded our other entrenched prob-
lems of livability: housing costs that eat
up paychecks, an epidemic of homeless-
ness that seems to defy all attempts to fix
it, one of the highest poverty rates in the
country, and the growing sense that only
the very wealthy can afford to live in
many of our largest cities.
These issues are not California’s alone:
There are similar problems in otherstates’ big cities. But neither Joe Biden
nor Trump dwell much on them, because
they aren’t the problems of Wisconsin,
Michigan, Pennsylvania or Florida.
Twice in my lifetime, the loser of the na-
tional popular vote has won the presiden-
cy. The same injustice might happen
again this year. But even if it doesn’t,
don’t conclude that all is well and good
with the way we pick the president.Consider last week’s debate between
Mike Pence and Kamala Harris. By my
count, the candidates mentioned frack-
ing — an issue of environmental and eco-
nomic importance in southwestern Penn-
sylvania, one of the most prized battle-
grounds — 10 times.
By comparison, the wildfires that set
ablaze the western United States last
month received only glancing mention —
and it was Susan Page, the moderator,
rather than Harris, California’s junior
senator, who brought them up.
In both the vice-presidential and the
presidential debates, nobody mentioned
housing or homelessness, a top policy is-
sue for people in my state. There was
barely a mention of building new roads,
bridges or expanding public transporta-
tion.
Then, of course, there is the Supreme
Court nomination that Republicans are
ramming through the Senate. Because
Republicans derive much of their politi-
cal strength from many small states, the
Senate amplifies their power; as CNN’s
Ronald Brownstein pointed out last
month, the 47 Democratic senators rep-
resent nearly 169 million people, morethan the 158 million people represented
by the Senate’s 53 Republicans.
If Amy Coney Barrett, Trump’s nomi-
nee to replace Ruth Bader Ginsburg, is
confirmed along partisan lines, the Su-
preme Court will cross “an undemocratic
milestone,” as Adam Cole pointed out in
Vox. For the first time, “a controlling ma-
jority of the court will have been put there
by senators whom most voters didn’t
choose.”
It boils my blood, all of it. Is it any won-
der that the United States has one of the
lowest rates of voter turnout among de-
veloped nations? The system is corro-
sive. We are told by everyone, every-
where, that voting is the path toward a
better country, but in every election, we
are shown that some votes matter much
more than others, and that we should all
just live with it, because smart people a
long time ago decided it should be so.
I still vote. I do it out of a sense of civic
duty and as a role model to my children,
and to make sure I can get the NIMBYs
off the City Council. But when it comes to
the national government, I long ago gave
up any hope of ever mattering. 0FARHAD MANJOO
California’s 40 Million People Are Sick of Being Ignored
In America’s electoral
system, some votes are
more equal than others.