- The Washington Times - Tuesday, November 10, 2015


Deeply disappointed by the summer’s rulings on same-sex marriage and Obamacare, conservatives see the presidential election next year as a watershed not only for control of the Supreme Court but also an entire federal judiciary that has been tilted leftward by President Obama’s nominees.

But beyond platitudes and boilerplate answers, only a few of the presidential aspirants have offered any specific insights into how they would vet judicial nominees.

Retired neurosurgeon Ben Carson and Sen. Ted Cruz have given unusually detailed plans for how they would go about choosing judges and justices. Former Florida Gov. Jeb Bush used a private event in New Hampshire to declare that the only way to be certain nominees will be strict constitutionalists and conservatives is to pick nominees with long records of ruling from the bench.

In so doing, he separated himself from his father’s infamous picks of David H. Souter and Anthony M. Kennedy as justices and his brother’s pick of John G. Roberts Jr. as chief justice, all three of whom have brought scowls to the faces of conservatives.

The high court and its crucial role in directing the republic haven’t been central to the campaigns this time.

“I’m surprised the gay marriage decision in June hasn’t caused more discussion by now by the candidates about the Supreme Court’s role,” said C. Boyden Gray, White House counsel to President George H.W. Bush and an ambassador for President George W. Bush.

Some court watchers detect the odor of defeatism wafting in the campaigns’ ranks.

“Some Republicans treat these decisions like the weather — you can’t do anything about it,” said Tom Fitton, president of the public-interest law firm Judicial Watch. “But that 5-4 decision [legalizing same-sex marriage] upended thousands of years of not just Western tradition but what has been the fundamental basis of civilization — that marriage is between a man and a woman.”

The ultimate test for conservatives is for a judicial nominee to stick strictly to the meaning of the original words of the Constitution and to the intent of laws passed by Congress, and not to “legislate from the bench” or to divine intent and meaning.

Mr. Gray, a Bush loyalist, said Mr. Cruz is the one candidate who knows the Supreme Court, having clerked for a chief justice, William H. Rehnquist, and argued many times before the high court as the chief appellate attorney for the state of Texas.

Mr. Carson, the renowned neurosurgeon and electoral neophyte, said litmus tests don’t work but then described the litmus test he would use by carefully evaluating the judicial records of potential nominees to ensure they wouldn’t deviate from the original intent or meaning of the Constitution and laws.

The time for a litmus test has come, said Merrill Matthews, resident scholar at the Institute for Policy Innovation in Dallas. “Republicans tend to say they won’t impose a litmus test, but it’s probably time to change,” he said.

“Because they don’t impose a litmus test usually, they’ve gotten some pretty bad justices. There’s only three dependable conservatives on the Supreme Court,” Mr. Matthews said.

Mr. Carson’s second, and by far bolder, view about the traditional judicial supremacy over the other two branches of government is that Congress, lower legislative bodies, as well as departments and agencies under certain conditions, may thumb their noses at Supreme Court decisions that are based on the premise that the Constitution is a “living” document.

The come-from-nowhere top-tier Republican candidate has said it’s time to review the validity of Marbury v. Madison, the 1803 landmark decision that declared the high court to be the final arbiter of whether a federal or state or local law is constitutional.

Mr. Cruz, the go-it-alone-when-necessary conservative from Texas, is just as bold in touting the twin ideas of retention elections and term limits for justices, despite the Constitution’s language that says members of the federal judiciary may serve as long as they please, so long as they can ascend, with or without assistance, the steps to the bench over which they preside.

Article 1, Section 1 of the Constitution says as much: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.”

Issuing bad decisions was not considered a lapse from good behavior, though failing to capitalize a noun, any noun, apparently was.

Sometimes decisions that are good for the body politic are badly arrived at, as even original-intent purists acknowledge.

The Supreme Court used the Constitution’s interstate commerce clause to justify federal reach into guaranteeing equal access to public accommodations nationwide, for example.

Sen. Rand Paul of Kentucky has his own tack, arguing that conservatives should think twice about attacking the courts because judges have played an important role in defending the rights of individuals fighting government overreach.

Whether that means judicial activism in the cause of anti-judicial activism is no vice is a matter yet to be debated.

Jeb Bush told a New Hampshire crowd in August that past presidents — whom he didn’t name, but the past two Republicans in the White House were his father and his brother — have nominees “that don’t have a proven record” because they’ve been too worried about facing an increasingly bloody Senate confirmation process.

“They wander, and you go, ‘How could that be?’” Mr. Bush asked.

“Because we’re in this partisan environment now where every one of these appointees, it’ll be a big, huge fight, and so, I believe we need to have people of experience, of a proven record, a consistent judicial philosophy that you know because they’ve done it over and over and over again, and then you’ve got to fight like hell to make sure they get passed, and that’s my pledge,” the former governor said.

Mr. Bush, who has raised doubts among conservatives about his views on immigration, taxes and spending, was roundly applauded by conservatives for those remarks.

Other presidential hopefuls who are self-proclaimed conservatives are choosing language that sounds congenial toward judicial supremacy, the opposite of Mr. Carson’s view.

“If the Supreme Court rules another way, they are the court and the law of the land, and we will abide by it,” Ohio Gov. John Kasich said recently.

Others in the Republican field have expressed the look-at-the-record criteria for Supreme Court appointments. The problem, conservatives say, is that voters will have to trust that their candidate will have the same standards of constitutionalism as Justices Antonin Scalia or Samuel A. Alito Jr., two favorites of the political right.

When ABC’s Chuck Todd asked for his model Supreme Court, business mogul Donald Trump avoided specificity like the practiced politician he is not.

“I have a number of people that I like, but I will say this: When it comes to the Supreme Court, I’d want high intellect and I’d want very conservative. I would like really high intellect and very conservative,” he answered.

The three Democratic contenders — Hillary Rodham Clinton, Bernard Sanders and Martin O’Malley — have said relatively little about choosing justices except to agree that their nominees would reliably vote to overturn the Citizens United decision on free speech.

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