What conservatives want in a Supreme Court Justice
The US Supreme Court

What conservatives want in a Supreme Court Justice

With a GOP president and Senate, shouldn’t we set the bar high?

Posted January 26, 2017 06:00 AM by Daniel Horowitz The US Supreme Court
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Yes, when conservatives say they want only originalists on the court, judges who will interpret the Constitution as it was originally adopted — irrespective of erroneous left-wing precedent — we really mean it. If there was ever an issue where conservatives both have the right and the opportunity to expect an iron-clad assurance to meet our expectations, it’s on the issue of filling Supreme Court and appeals court vacancies.

The enormity of the choice before us

Between the loss of Antonin Scalia, Kennedy moving even further to the left, the numerous consequences of Obergefell, the craziness of the lower courts after eight years of Obama, and the one directional stare decisis and legal momentum this environment has created, the federal judiciary has turned itself into an unmitigated dumpster fire. In fact, as I’ve noted before in this column channeling Justice Alito, the courts and the entire legal profession as we know them are irremediably broken.

Last year, I wrote a book built upon the premise that at this point the only way to really fix the problem is for Congress to reassert its power over the federal judiciary and to reform the system through a Convention of the States.

Nonetheless, as we hopefully push broader systemic reforms to the system, it is a no-brainer that when given the opportunity to appoint a Supreme Court justice with a GOP-controlled Senate, we should leave nothing on the table in pursuit of the best option possible. If by some miracle Kennedy or Ginsburg decide to retire on Trump’s watch, the selection of two new justices who subscribe to Clarence Thomas’s views on uprooting anti-constitutional “precedent” could go a long way in rolling back some of the social transformation the Left has successfully achieved.

If we don’t, one need only look across the Atlantic Ocean to Europe to see the kind of legal nonsense that will herald our very own civilizational suicide. And remember, with Republicans in power at the federal level and in many states, we will only be playing defense at the courts in the coming years.  

How we got here

Conservatives have gotten burned by the Supreme Court nomination process time and time again. In fact, burned badly. Of the 17 justices appointed by Republican presidents since World War II, only four could be considered originalists (for the most part): Rehnquist, Scalia, Thomas, and Alito. Most of the remaining picks were not only subscribers to the “living and breathing Constitution” doctrine, but were pioneers in leading the violence against our Constitution. From Brennan, Warren, and Blackmun, to O’Connor, Stevens, Souter, and Kennedy, Republican-appointed judges have authored opinions promoting the worst forms of social transformation without representation (as Scalia dubbed it). 

Of course, while most Republican-appointees were dismal — although slightly better in recent years — every single Democrat pick has been an anti-constitutionalist. A similar trend has persisted in the lower courts, which decide 99 percent of the federal cases. Taken together, we’d be a very different country had we merely utilized Republican presidencies to make the right picks. And indeed, in addition to vandalizing the Constitution, these judges have expanded the role of the court in itself to that of sole and final arbiter of every societal issue, whereby the courts in fact change the country itself simply by making a bad ruling in one case.   

On several occasions, the result was not the fault of the GOP president, but the result of Democrats controlling the Senate. Thus, when George W. Bush came into power with a GOP Senate, we swore to ourselves as a movement that we would never make the same mistake again. Yet, we got John Roberts who was so regarded by Bush and some conservatives that he was elevated to Chief Justice. Meanwhile, he has screwed us over, not just on Obamacare, but on Arizona’s immigration law, a host of smaller cases, and his penchant for not taking appeals from bad lower court decisions.

There were some conservatives who warned at the time that Roberts was a blank slate and that he could very well be a “centrist.” However, most people who knew him thought he had a brilliant conservative legal mind. In fact, while in the Reagan administration, Roberts authored a brilliant memo on Congress’ plenary power to regulate the court’s jurisdiction on key issues, something even many “conservative” jurists don’t like. Yet without an iron-clad demonstrable paper trail of fighting for true originalism on key issues in practice — especially social and political issues intersecting with the legal profession’s basterdization of the Fourteenth Amendment — there was no way to tell for sure. Conservatives got more aggressive the next time and scuttled the Harriet Myers nomination. We got Alito instead, a great jurist, although slightly below Thomas on some issues.

And the rest is history. 

Where we stand today

According to news reports, assuming Trump is not orchestrating a master media rope-a-dope, the two top choices are 10th Circuit Court of Appeals Judge Neil Gorsuch and 3rd Circuit Court of Appeals Judge Thomas Hardiman.

From the onset, it’s important to note that given the advancement of the conservative movement and that this list was put together by some very good allies, we can be fairly confident that none of the 21 names on the list will turn out like Anthony Kennedy.  

But again, given that we only get one shot at this, that we actually have a GOP Senate and that we don’t need a stealth nominee, and that this era calls for a game-changer, shouldn’t we make sure that we are absolutely certain we are getting a Clarence Thomas? Why shouldn’t we aspire to that with a GOP Senate?

Although Hardiman has written some good opinions, his small paper trail is far too thin to conclusively indicate he is what we are looking for.

By all accounts, Neil Gorsuch, who has been touted as the top choice by some media reports, is a brilliant jurist who is a pro-life, political conservative. He wrote a terrific book making the moral and legal case against euthanasia and physician assisted suicide. There is little doubt that he would not contribute to new anti-constitutional “jurisprudence” as it relates to new abortion, religious liberty, or transgender cases.

Moreover, given the increased libertarian focus within the conservative legal establishment, all of the top nominees, including Gorsuch, are strong opponents of the “Chevron deference” that allows executive agencies to adulterate regulatory statutes.

However, as it relates to rolling back existing faux precedent on a host of issues that really matter to our civilization, fundamental rights, and proper application of federal and state powers, would Gorsuch be willing to roll back Roe or Obergefell. What about issues pertaining to regulating state election law, affirmative action, or immigration?

As it relates to the Fourteenth Amendment, does he believe as the crafters of the Amendment did, that the Equal Protection and Due Process clauses were “establishing no new right, declaring no new principle,” rather were written to reiterate and “to protect and enforce those which belong to every citizen.”?[1] Does he believe, as many of us do, that all of the prevailing legal thought related to the Fourteenth Amendment, birthright citizenship, state control over redistricting and voter integrity laws, the Establishment Clause, enshrining the homosexual agenda into civil rights and the Fourteenth Amendment, have absolutely no basis in the Constitution or statute? 

Is Gorsuch willing to overturn bad precedent, maybe not from the 1800s but at least since the Warren era and beyond?

What about the concoction of phony rights under incorporation? Remember, at this point there is enough existing toxic 14th Amendment jurisprudence and anti-religious Establishment Clause jurisprudence to destroy this country without creating new innovations.

Will Gorsuch be willing to aggressively grant appeals to plaintiffs and states screwed over by prevailing legal theory in the lower courts?

These are all issues happening right now. And if we have a once in a lifetime opportunity to pick the very best with the luxury of a Republican Senate, these are the needs we must fill.  

To be fair, these are questions that must be asked of any nominee, and they’re not going to be made readily apparent by simply looking at the opinions of an appellate judge whose job, under prevailing legal theory, consists more or less of simply upholding and interpreting precedent set by the Supreme Court. Perhaps, Gorusch is such a person. But I don’t think anyone can say with a high degree of certitude that he is necessarily such a person, although he will likely be a good judge who is personally conservative. But would he be willing to buck the entire legal profession and rule in accordance with true equality even when such rulings are considered “racist?”

Once again, Gorsuch could very well be that man, but are we as confident about him as we would a proven fighter like Sen. Ted Cruz, R-Texas (A, 97%) and Sen. Mike Lee, R-Utah (A, 100%) or Thomas Lee (Sen. Lee’s brother)?  Is Trump’s team avoiding some of the better-known originalist firebrands because of concern for Democrat opposition?  If so, that would be a colossal mistake.  Democrats don’t control the Senate.

This is not to say Gorsuch would be a bad choice, indeed he’d likely be a very good justice. But the bar for what we need at this point in history, and frankly, what we should expect, is very high. Conservatives need to be sure of Gorsuch’s philosophy not just on the typical questions but some of the aforementioned issues that are likely to come up. Most importantly, conservatives must understand his philosophy on overturning precedent. Sure, even Scalia reluctantly went along with stare decisis in many cases, but clearly at the end of his life he realized that we now live in the post-constitutional Gomorrah Robert Bork warned about.

In some of his final speeches, Scalia warned that, contrary to popular belief, the court was always liberal “the whole time I have been on my court.” Yet, at the same time, it was clear he believed it was worse than ever and that he couldn’t imagine how “you can go any further” down the “slippery slope” of judicial tyranny than creating “the right to same-sex marriage.” Scalia was subtly telegraphing a call to action with statements such as these; it’s our duty to heed it.

The legal system has declared war on us for over half a century and it has largely been a one-sided fight. The times we live in call for an extraordinary pick for the Supreme Court. When vetting these candidates, conservatives should keep in mind the Eminem lyric lose yourself: “You want it, you better never let it go. You only get one shot, do not miss your chance to blow. This opportunity comes once in a lifetime.” 

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.