Last night’s Republican debates finally got to one of the most important issues to conservatives: the Supreme Court. The issue debuted in the early “undercard” debate, and was raised again in the main event by CNN reporter Dana Bash.
Bush had the first chance to weigh in. He said some really good things about the need to appoint judges with a proven record, signaled that he agrees that we could do better than Chief Justice Roberts despite the fact that he has made some good decisions, and then finished strong by underscoring his willingness to fight hard for great nominees:
[DANA BASH]: Governor Bush, let’s talk about the issue that’s very important to Republican voters, and that’s the Supreme Court. After Chief Justice John Roberts voted to uphold Obamacare twice, Senator Cruz criticized your brother for appointing John Roberts to the Supreme Court.
Looking back on it, did your brother make a mistake?
BUSH: [. . .] I will talk about what I will do as it relates to appointing Supreme Court Justices. We need to make sure that we have justices that, with a proven experienced record of respect for upholding the constitution. That is what we need. We can’t have — the history in recent past is appoint people that have no experience so that you can’t get attacked.
And, that makes it harder for people to have confidence that they won’t veer off . . .
BASH: . . . Is John Roberts one of those people?
BUSH: John Roberts has made some really good decisions, for sure, but he did not have a proven, extensive record that would have made the clarity the important thing, and that’s what we need to do. And, I’m willing to fight for those nominees to make sure that they get passed. You can’t do it the politically expedient way anymore. This is the culture in Washington. You have to fight hard for these appointments. This is perhaps the most important thing that the next president will do. . . . But, the simple fact is that going forward, what we need to do is to have someone that has a long standing set of rulings that consistently makes it clear that he is a focused, exclusively on upholding the Constitution of the United States so they won’t try to use the bench as a means to which legislate. . . . And, that’s what we should do, and I hope I’ll be working members of the United States Senate to fight hard for the passage of people that have that kind of qualification.
Cruz got to respond next, since he had been called out for supporting Roberts in his Supreme Court nomination. He had a solid response that also focused on the need to invest political capital in choosing Supreme Court nominees with a good record:
Well, Dana, I’ve known John Roberts for 20 years, he’s amazingly talented lawyer, but, yes, it was a mistake when he was appointed to the Supreme Court. He’s a good enough lawyer that he knows in these Obamacare cases he changed the statute, he changed the law in order to force that failed law on millions of Americans for a political outcome.
And, you know, we’re frustrated as conservatives. We keep winning elections, and then we don’t get the outcome we want. . . . If, instead, the President Bush had appointed Edith Jones, and Mike Luttig, which is who I would have appointed, Obamacare would have been struck down three years ago, and the marriage laws of all 50 states would be on the books. These matter, and I fought to defend the constitution my whole life and I will as president as well. . . . It is true that after George W. Bush nominated John Roberts, I supported his confirmation. That was a mistake and I regret that. I wouldn’t have nominated John Roberts, and indeed, Governor Bush pointed out why.
It wasn’t that the President Bushes wanted to appoint a liberal to the court, it’s that it was the easier choice. Both David Souter and John Roberts, they didn’t have a long paper trail. If you had nominated Edith Jones or Mike Luttig you would have had a bloody fight and they weren’t willing to spend political capital to put a strong judicial conservative on the court.
I have spent my entire life, starting from clerking for Chief Justice William Rehnquist on the United States Supreme Court, one of the most principled jurists. We have an out-of-control Court, and I give you my word, if I’m elected president, every single Supreme Court justice will faithfully follow the law and will not act like philosopher kings imposing their liberal policies on millions of Americans who need to be trusted to govern ourselves.
Mike Huckabee then weighed in with his litmus test for Supreme Court justices, listing the many crucial issues decided by the courts:
I’m tired of liberals always having a litmus test and conservatives are supposed to pretend we don’t. Well let me tell you what mine would be.
Number one, I’d ask do you think that the unborn child is a human being or is it just a blob of tissue? I’d want to know the answer to that. I’d want to know do you believe in the First Amendment, do you believe that religious liberty is the fundamental liberty around which all the other freedoms of this country are based? And I’d want to know do you really believe in the Second Amendment, do you believe that we have an individual right to bear arms to protect ourselves and our family and to protect our country? And do you believe in the Fifth and the 14th Amendment? Do you believe that a person, before they’re deprived of life and liberty, should in fact have due process and equal protection under the law? Because if you do, you’re going to do more than defund Planned Parenthood. . . .
One final thing. I’d make darn sure that we absolutely believe the 10th Amendment. Every governor on this stage would share this much with you. Every one of us — our biggest fight wasn’t always with the legislature or even with the Democrats. My gosh, half the time, it was with the federal government who apparently never understood that if it’s not reserved in the Constitution, then the 10th Amendment says it’s left to the states. But somebody forgot to send a memo to Washington.
In the earlier debate, Louisiana governor Bobby Jindal weighed in on the confirmation of John Roberts as Chief Justice and his predecessors of ambiguous judicial conservatism, vowing that he would appoint “bold judges”:
I think actually putting Roberts, I think putting Kennedy, I think putting — before them, I think putting Souter on the bench was a mistake. But look, I think the — the first responsibility starts in the White House. The reality is conservatives have not been willing to stand up for our beliefs, unlike the liberals — look, you never worry about where the Democratic judges are going to vote, it’s always the conservatives. You’ve never had a Democratic judge wake up and say, surprise, I’ve evolved, I’ve become a conservative.
It’s always the Republicans, because we have presidents that try to find judges with no records, no rulings, no writings. I’ll tell you, I am going to have a litmus test. For judges, I’m going to find judges that are conservative, judges that are going to be pro-life, judges that are going to follow “The Constitution,” judges, by the way, that are going to follow the American law, not international law. . . .
It’s time for a Republican president as the next commander in chief, I will do as the Democrats have done. I will appoint bold judges that are actually consistent with my values that will be conservatives. . . .
It’s not that [Chief Justice Roberts] got a minor ruling wrong. This is twice he rewrote the law. . . . It’s not 99-1. The one that he got wrong was a big one. Twice he bent over backwards to save ObamaCare. If the Republicans had voted the way that we should — they should have, we would still have our 19th Amendment rights and ObamaCare would not be the law of the land.
Lindsey Graham and Rick Santorum, who both voted to confirm John Roberts, were more equivocal. Senator Graham defended his pro-Roberts vote by saying that Roberts was right 99% of the time:
He’s one of the most qualified men to ever come before the United States Senate and I don’t agree with his decision, but 99 times out of 100, I will. To the Republicans, the biggest prize on the table in 2017 is the presidency. If it is Hillary Clinton, Joe Biden or Bernie Sanders, they are going to pick people that we will disagree with all the time. Please understand, we have to win this election. The court’s at stake. It is the most important reason for us to turn out, to make sure we don’t lose the judiciary for decades to come.
Santorum also refused to disavow his vote to confirm Roberts, but stopped short of praising Robert’s time on the bench (as opposed to his record before confirmation). He also pointed to his admirable support for judicial filibuster reform during the Bush Administration.
Well, contrary to what Governor Jindal said, Governor — Justice Roberts had a long record and it was a long, good record. And so he made a bad decision on — a couple of bad decisions on ObamaCare but he’s made a lot of great decisions, too.
And so I don’t — I don’t regret at all standing up for John Roberts . . .;We fought, for the first time, to defeat justices and judges that Bill Clinton nominated and I fought with President Bush to defend his nominees, to push even a filibuster, breaking the filibuster. I led that fight against someone who didn’t want to end the filibuster in order for us to get good, conservative justices. So I have been there on the front line, fighting for judges and conservative justices and I will do so as president like none other.