- - Wednesday, July 11, 2018

ANALYSIS/OPINION:

Donald Trump made a keen calculation while he was running for president.

In a move that has no precedent in American politics, candidate Trump made a list of potential Supreme Court nominees, publicly released it, and pledged to select only from that list to fill vacancies.

This move was shrewd because it bound him to a list of qualified judges who were both originalists and textualists, in the mold of the late Justice Antonin Scalia. By releasing the list and pledging to stick to it, he showed he was serious. This decision raised the stakes for the presidential election.

With one vacant Supreme Court seat to be settled by the election, voters knew that one or two more openings were conceivable. Now 18 months into his presidency, conservatives must be feeling that their partnership with Mr. Trump is paying off handsomely.

With the confirmation of the stellar nominee in Justice Neil M. Gorsuch, the Scalia seat was filled with a solid replacement who will likely serve 25 to 30 years on the court.

But the consequence of filling the Scalia seat was more marginal than the political earthquake that Justice Anthony M. Kennedy’s retirement ignited.

Trading Scalia for Justice Gorsuch changes little. Trading Judge Brett M. Kavanaugh for Justice Kennedy, the court’s perennial swing vote, could change a lot.

The Supreme Court considers a very small number of cases. Only the most divisive and challenging issues often result in 5-4 decisions, and they are typically held until the end of each Supreme Court term.

The Democratic Party’s hysteria, which has been on display since Justice Kennedy announced his retirement, has been revealing.

Democratic senators like Pennsylvania’s Bob Casey announced they would oppose President Trump’s choice even before the nominee was announced, making a mockery of the “advise and consent” constitutional responsibility given to the Senate.

Outside groups are hyperventilating about Roe v. Wade, claiming that a Justice Kavanaugh will guarantee the seminal abortion ruling will be overturned. No one can predict the future. Justices consider the Constitution, statute, legal arguments, precedent and lower court rulings before deciding a case. Only one sitting justice has ever weighed in one Roe v. Wade, and that is Justice Clarence Thomas who has ruled (in a dissent) that it should be overturned. We are a long way from five votes to overturn Roe. Additionally, even if it were overturned, it would simply return the abortion debate back to the states.

Liberal commentators also claim Judge Kavanaugh would rule that the pre-existing condition protection in Obamacare is unconstitutional, forgetting entirely that Justice Kennedy ruled Obamacare was unconstitutional and thus the votes on the court would not meaningfully change.

The most revealing thing about the urgent Democratic reaction to this unquestionably qualified nominee is what is really driving the opposition.

Democrats see the Supreme Court as an extra-legislative body. They want the justices to support the expansion of the administrative state and uphold progressive ideas and ideals.

Democrats evaluate judges by outcomes, not by how or why a ruling is made. It is as if the Constitution and prior statute are mere suggestions.

If Democrats lose control of the Supreme Court to rubber-stamp their executive orders and legislation, they will be forced to make their case to voters and win elections to effect policy.

Legislative bodies that should make laws. The courts should interpret the laws. Originalism and textualism are ideas that Justice Scalia made real, and organizations like the Federalist Society have helped groom a new generation of judges to approach their roles through that lens.

Returning the Supreme Court to its more limited role is desperately needed.

Matt Mackowiak is president of Austin, Texas, and Washington, D.C.-based Potomac Strategy Group. He’s a Republican consultant, a Bush administration and Bush-Cheney re-election campaign veteran and former press secretary to two U.S. senators. His “Mack on Politics” podcast is available on iTunes, Google Play, Stitcher and on WashingtonTimes.com.


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