Comes the moment to decide

Once to every man and nation comes the moment to decide,

In the strife of Truth with Falsehood, for the good or evil side

— J.R. Lowell

The president’s nominee for the open seat on the Supreme Court appears to be a highly qualified judge and scholar. She has set her moral convictions in the open, and, if not decisive, they are plainly relevant to the mission of this publication about parents and school.

Our constitution recognizes the legal sovereignty of the parent over the decision about who shall school their child. However, a century and a half of our country’s discrimination has denied choice to those parents who cannot afford either private school tuition or its equivalent in a freely chosen suburban institution where taxes play tuition’s role.

Judge Amy Coney Barrett clearly would prefer that society protect that same parental authority for the not-so-rich parents (and for the larger family) over who shall mentor this child.

The sudden opening of a place on the high court comes at a uniquely awkward moment. There is time, if properly managed, for the Senate to decide Judge Barrett’s future, and with it, (maybe) the basic legality of our conscription of the poor family for “public” school. The Court’s recent decisions on religious discrimination do suggest the possibility, and the appointment of Judge Barrett might advance the odds of such an historic stroke for human dignity.

Hence, the intense alarm of the teachers union leadership as it sees its monopoly over the poor at risk. No surprise; but what of the reaction of the Democratic Party (my own!)?

These self-declared defenders of the common folk are caught in a political seizure, even at one point declaring 50 days an unsuitably short time to decide who shall sit at the high bench – and, in any case, the fate of Judge Barrett, who could threaten the monopoly of the teachers union so valued by the Bidens.

May we ask ourselves: Observing this reality of Democratic dismay at the prospect of this nominee deciding cases, who is it here who is the voice for the poor? Are we who are registered Democrats supposed to be proud of our party, so unstrung at the prospect of a justice who just might support the actual exercise of the low-income parents’ right to choose? Who is it that is actually pulling for the poor here?

Obviously, there is time to decide, and this Democrat is pulling for Judge Barrett.


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BY John E. Coons

John E. Coons is a professor of law, emeritus, University of California at Berkeley, and author with Stephen D. Sugarman of "Private Wealth and Public Education" and "Education by Choice."