The Elephant in the Room: Judicial Nominations

You wouldn’t know it from last month’s headline debate, but Supreme Court appointments are any president’s longest-lasting legacy. The Supreme Court decides nearly every public issue, from Obamacare to environmental regulation, so it’s important to have justices who will properly interpret the laws and the Constitution.

Potential chief executives only need to look at the last Term to understand the Supreme Court’s vast reach.  It handed down major decisions in discrimination law, the taking of private property, and the death penalty, not to mention marriage and the Affordable Care Act.

And that was just the last week of the term.

Even the major issues that the debates did address will end up before the Court:

  • Immigration power grab? One particularly strong case may go before the justices next year.
  • Environmental policy? The EPA’s “clean power” rule and other end-of-term monstrosities are definitely headed to the Court, just like the greenhouse gas cases.
  • Deference to administrative agencies? A majority of justices have questioned it recently.
  • Racial preferences? The Court will decide a key case this year.
  • Obamacare? More constitutional challenges are on the way.
  • Iran deal?  Headed to the Court eventually under the Treaty Clause.
  • Abortion? The Supreme Court hears abortion cases all the time.
  • Death penalty? Almost half of the Supreme Court wants to kill it.
  • Right to bear arms? The lower courts continue to defy the Supreme Court’s prior decisions requiring states and localities to recognize an individual right.

The next president will appoint as many as three Supreme Court justices, yet the candidates weren’t asked a single question about how they would approach judicial nominations.  The Constitution gives presidents the responsibility to pick scores of appellate and trial judges, too, shaping for a generation how the Constitution will be interpreted at all levels of the judiciary. What kind of people will they trust with life tenure and the responsibility to uphold the rule of law?

Will the candidates choose unwise judges who put “empathy” first (also known as “bias” and “prejudice”), or will they choose judges who put the law before their policy preferences? They will have to decide whether they want to nominate politically “safe” blank-slate candidates, despite the risk that their judicial decisions will lurch leftward, or whether they intend to put real political muscle behind the best candidates. 

The next president will also have to decide whether to follow President Obama and give the liberal ideologues at the American Bar Association a privileged position in their nomination process, or let them learn about and comment on candidates along with the rest of us. 

As last year’s term clearly shows, the president must know how to find nominees who have a record of standing up for their principles under pressure from colleagues, the media, and public opinion polls without regard to political or social considerations.

I hope the upcoming debates clarify whether the nominees’ understanding of the courts goes deeper than vowing to nominate the next Scalia or Alito.  Because while the next president may leave the White House after four years, his or her judges will rule us for decades. 

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

Most Popular

Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
PC Culture

Kill Chic

We live in a society in which gratuitous violence is the trademark of video games, movies, and popular music. Kill this, shoot that in repugnant detail becomes a race to the visual and spoken bottom. We have gone from Sam Peckinpah’s realistic portrayal of violent death to a gory ritual of metal ripping ... Read More

Romney Is a Misfit for America

Mitt’s back. The former governor of Massachusetts and occasional native son of Michigan has a new persona: Mr. Utah. He’s going to bring Utah conservatism to the whole Republican party and to the country at large. Wholesome, efficient, industrious, faithful. “Utah has a lot to teach the politicians in ... Read More
Law & the Courts

What the Second Amendment Means Today

The horrifying school massacre in Parkland, Fla., has prompted another national debate about guns. Unfortunately, it seems that these conversations are never terribly constructive — they are too often dominated by screeching extremists on both sides of the aisle and armchair pundits who offer sweeping opinions ... Read More

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More
Film & TV

Black Panther’s Circle of Hype

The Marvel Cinematic Universe (MCU) first infantilizes its audience, then banalizes it, and, finally, controls it through marketing. This commercial strategy, geared toward adolescents of all ages, resembles the Democratic party’s political manipulation of black Americans, targeting that audience through its ... Read More