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.

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