Tyrion’s (hereinafter I shall refer to Volinsky as Tyrion in accordance with my latest nom-de-twitter for him #TyrionVolinsky) piece tells us much more about Tyrion’s qualifications to be Governor than it does about MaxDonald’s qualifications to sit on the New Hampshire Supreme Court. More specifically, Tyrion views the judiciary as a Super-Legislature that only highly woke progressives can sit on:
… Mr. MacDonald had the opportunity during his confirmation hearing to acknowledge how extreme his prior positions were and to step away from them. He did not do so. Instead, he promised, if confirmed, to follow the “rule of law.” This phrase was repeated over and over as if it was a protective talisman. But the talisman no longer works because we live in the age of Trump and McConnell, of Gorsuch and Kavanaugh, and of the legislatures in Alabama, Georgia, Missouri and Utah – all of whom are committed to overturning the rule of law. …
I agree with Tyrion that it is not enough for a judicial nominee to intone “rule of law” because “rule of law” means different things to different people. I wrote a post in connection with MacDonald’s nomination in which I discussed the primacy of judicial philosophy in vetting judicial nominees.
It is clear from Tyrion’s piece in the Concord Monitor that when Tyrion says “rule of law” he does not mean following lawful procedures but rather defending/advancing the progressive political agenda.
By the “legislatures in Alabama, Georgia, Missouri and Utah … are committed to overturning the rue of law,” Tyrion is referring to laws passed in these States regulating abortion. Nobody claims there was anything illegal or suspect in the process by which these laws were passed. What Tyrion means is that lawfully enacting a law is nonetheless contrary to the “rule of law” if it produces policy results that he and his fellow highly woke progressives disagree with.
Legislatures pass laws all the time that get deemed unconstitutional by courts. No objective person describes this as legislatures “overturning the rule of law.” This is simply how our system of government works. Checks and balances. Legislatures have the power to pass laws and the judiciary has a check on that power through its power of Judicial-Review: the power to refuse to enforce laws that it deems unconstitutional.
But in Tyrion’s warped world, the President lawfully nominating and the Senate lawfully confirming judges who have a conservative judicial philosophy (which is totally different from AND NOT TO BE CONFUSED OR CONFLATED WITH a conservative political philosophy) —“we live in the age of Trump and McConnell, of Gorsuch and Kavanaugh”— is nonetheless “overturning the rule of law.”
That Tyrion views the judiciary as a Super-Legislature is clear by his “Mr. MacDonald had the opportunity during his confirmation hearing to acknowledge how extreme his prior positions were and to step away from them.” In other words, judging is totally political to Tyrion -the judge starts with the politically correct progressive policy position, and then reasons backwards to the constitution or statute to try to make it appear that his decision is a legal exercise not the exercise of raw power.
Anybody who thinks this way is manifestly unfit to be Governor … or to sit on the Executive Council. Anybody who thinks this way is the one who is intent on “overturning the rule of law.”
Tyrion is trying to mask his disdain for the “rule of law” with abortion and other woke-ness. Yet as I discussed here, Tyrion’s fellow-progressives were very comfortable with the idea of MacDonald upholding/maintaining “Roe v. Wade.”
Tyrion’s vote AGAINST MacDonald was really about establishing his bona-fides for any Democrat gubernatorial primary. It was about the Democrat Party being the “resistance”. It was about humiliating Governor Sununu. And it was about “overturning the rule of law,” in an underhanded and devious fashion.
Nothing in this post should be considered an endorsement of MacDonald’s nomination, for the reasons I previously discussed here. Unlike Tyrion, I would have asked MacDonald questions about his judicial philosophy (and regarding the other attributes discussed here), and made my decision based on that.