Justice Ruth Bader Ginsburg had one of the most influential legal careers of anyone in American history. As the nation mourns her loss, the Constitution now charges President Donald Trump with the responsibility of nominating her successor. In doing so, he should take care to select a nominee who will adhere to the foundational charge of any justice: to rule based on the Constitution and the law, rather than a personal agenda. Such a jurist should give confidence to a divided nation that the Court will be focused on its limited-but-critical role of interpreting the law and protecting individual liberty.
Fortunately, this is also the job description outlined by the Founders and spelled out in the Constitution. In Federalist No. 78, Alexander Hamilton wrote that while the legislature “prescribes the rules by which the duties and rights of every citizen are to be regulated,” the judiciary “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.”
Chief Justice John Marshall stressed the crucial role that the judiciary plays in keeping the other branches of the federal government within their constitutionally limited roles, asking, “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained?”
It is legislators’ job to write the law, and we elect them for that purpose. It is the Court’s role to faithfully interpret and apply the law. A good judge will be “restrained” in exercising only the judiciary’s constitutional power of the Court to say what the law is. Within the confines of that role, he or she will actively defend the fundamental liberties of the people and check the tendency of the other branches to threaten those liberties by overstepping their own constitutional boundaries.
Judges must stay committed to these principles even when doing so leads to unpopular outcomes. At the same time, they should ignore appeals and attacks from those who see the courts as a shortcut to enacting policies that can’t earn the support of those elected to make our laws.
This approach ensures that policy questions stay in the hands of our politically accountable representatives and not with unelected judges serving life terms. The courts risk a loss of credibility and popular support when it tries to act as a “super legislature,” making law from the bench.
In selecting and confirming judges, the president and Senate should be focused on whether a jurist will judge each case independently and fairly. Asking judges to commit to certain case outcomes as part of a “litmus test” is harmful to the process. We know that judges who aren’t guided by fealty to the Constitution will still be guided by something. Our system doesn’t work when that guidance comes from polls, activist ideologues, or party leaders.
The president has already made two excellent nominations in Justices Neil Gorsuch and Brett Kavanaugh. I’m hopeful that his next nominee will be excellent as well. America is blessed with many highly qualified judges and scholars who fit the bill. In a nation as divided as ours is today, it is unlikely we will be able to unite around any nominee. Nobody said healing our political dysfunction would be easy. But a justice who defends the freedoms of all Americans and holds the rest of our government accountable to the Constitution would be a step in the right direction. I’d ask the president to select such a nominee.