Bench Memos

This Is Not About Newt


So Newt said some things about judges and everyone noticed. Since then, we have been treated to more debate about the role of the judiciary and separation of powers than most of Dean Kagan’s students got in their (non-mandatory) constitutional law classes at Harvard Law School. 

Agree or disagree with his proposals, it seems all conservatives agree that more needs to be done about the problem of judicial activism. But the range of proposals under discussion right now would require constitutional amendments or major congressional action.

I have always believed, and JCN has always maintained, that the most effective way to restore the judiciary to its proper role is more simple: fill judicial vacancies with individuals who will base their decisions on the text and original meaning of the Constitution. Anyone who doubts the transformative impact of filling judicial vacancies with judges like Scalia, Thomas, Alito, and Roberts should simply consult the Court’s majority and dissenting opinions in D.C. vs. Heller, both of which purported to rely on an originalist framework. The fact that even those opposing an individual right to bear arms were forced to argue on originalist terms is a real accomplishment.

This fundamental shift in the debate is no coincidence. It was brought about by two decades of work, populating the federal bench with serious, smart, principled judges. But that progress can be undone in the same way, if we lose focus on the importance of nominating and confirming good judges.

At the federal level, no public official can put as much lead in that target as the president. It just so happens we are in the middle of a presidential election cycle. So I would like to encourage the candidates to focus on this core responsibility, which they will have to deal with on Day One of the new administration.

The candidates should, of course, commit to making Justices Scalia, Thomas, Roberts and Alito the gold standards in terms of the judicial philosophy they will seek in nominees at all levels. But here a few other ideas I would like to see the Republican candidates discussing:

I. The ABA’s privileged role. Which of the candidates would sign a directive as president removing the American Bar Association from its privileged role in officially rating judicial nominees?

II. Prioritizing judicial vacancies. How many of the candidates would fill all judicial vacancies passed along by their predecessor within the first 100 days of the new administration? 

III. No more Souters. Will all of the candidates commit to filling vacancies through a rigorous and regularized process managed by judicial conservatives, devoted to identifying men and women who have a well-documented public record indicating that they will be faithful to the text and original meaning of the Constitution?


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