- The Washington Times - Thursday, June 28, 2018

ANALYSIS/OPINION:

Justice Anthony Kennedy’s retirement gives President Trump an opportunity to guarantee his legacy as the first Republican president to get it right for conservatives when filling Supreme Court openings.

His Neil Gorsuch appointment has kept the Antonin Scalia original-intent flame burning bright.

Now Mr. Trump can name a reliably across-the-board conservative to replace Justice Kennedy, who, as a generally libertarian-minded force on the court, has never had the blessing of social and religious conservatives.

He has often cast the deciding vote advancing socially liberal causes by claiming — as social conservatives see it — to discover new rights in the Constitution on abortion and homosexuality. Some prominent conservatives privately agree with the Kennedy view as being truly conservative because it keeps big government’s nose out of people’s private business.

For social conservatives, Justice Kennedy, appointed in 1987 to the seat intended for Robert Bork, was President Reagan’s biggest mistake. Three decades earlier, President Dwight D. Eisenhower said his biggest mistake was appointing the relentlessly liberal Earl Warren as chief justice. No argument there.

President Richard M. Nixon’s 1970 appointee, Justice Harry Blackmun, wrote the majority Roe v. Wade decision making abortion a constitutional right. Nixon’s third appointee, Justice Lewis Powell, turned out to be the court’s unreliable swing vote.

Nixon at least got it right with his fourth appointee, Justice William H. Rehnquist, who would be later elevated to a chief justice and had a deep respect for the 10th Amendment, arguably the heart of limited-government conservatism.

President Gerald Ford’s only appointee, Justice John Paul Stevens, drifted so far left that by the 1990s he led the court’s liberal contingent. President George H.W. Bush messed up big time by following his clueless chief of staff John H. Sununu’s advice to pick David Souter, who turned out to be an across-the-board liberal.

President George W. Bush succeeded in getting Chief Justice John G. Roberts Jr. and Samuel A. Alito, a reliable conservative, on the high court. But the latter can perhaps be attributed to divine intervention on (and definitely loud conservative opposition to) the withdrawal of the younger Mr. Bush’s first nutty choice, Harriet Miers.

Now, if Mr. Trump names Sen. Mike Lee, a Utah Republican whose Senate votes and talk have been unerringly spot on for conservatives — including those who focus on social/religious things — it would seal the Trump legacy deal.

Forget about it.

Mr. Lee has been way too critical of what he regards as Mr. Trump’s rhetorical excesses and personal follies to get rewarded with a Supreme Court seat.

A more likely pick is a jurist of U.S. Circuit Appeals Court Judge Raymond M. Kethledge’s ilk; that is, a constitutionalist of the original-intent bent. Reagan administration assistant attorney general Chuck Cooper, a friend and admirer of both Mr. Lee and Judge Kethledge, says he knows the “record and mind” of both men and either man would be ideal.

Now for the touchy question of the Roberts rule: It’s possible, even probable, that a perfectly reliable conservative appointee like Judge Kethledge or Mr. Lee ultimately will not change the court to a 100 percent reliable 5-4 majority. It now most often described in the press and at the water cooler as having four conservatives, four liberals and Justice Kennedy. But that ignores Chief Justice Roberts’ off-reservation sojourns.

The chief justice looks like he’s on his way to becoming the court-defining swing vote that Justice Kennedy has been. His most notable, but far from only, liberal swing was in the 2012 Affordable Care Act ruling.

Obamacare said if you don’t obey the government order to buy health insurance, it will slap you with a fine. Incomprehensibly granting the government unlimited power over its citizens, Chief Justice Roberts wrote in his 2012 majority opinion that the penalty was actually a tax and therefore constitutional.

So now a Democratic Congress under a President Mike Bloomberg could fine you for not buying an electric car or for buying a 12-ounce instead of a 6-ounce Pepsi. That Roberts decision — not joined in by Justice Kennedy — was a slap in the faces of Obamacare opponents, meaning every conservative in all 50 states (and both conservatives in the District of Columbia).

It was far from the only time Chief Justice Roberts joined with the high court’s liberals. The Washington Post once noted that by 2015, Chief Justice Roberts had drifted far enough left to agree with liberal Justices Elena Kagan and Ruth Bader Ginsburg in, respectively, 87 percent and 78 percent of cases.

But wait. If you stare down this tunnel long enough, you’ll see light. Tom Fitton, president of the conservative watchdog group Judicial Watch, agrees with Mr. Cooper and other court watchers that even with Chief Justice Roberts as the new swing vote, the high court will be right with the right at least more often than it has up till now. Why? Because the Roberts worldview focuses measurably to the starboard of Justice Kennedy’s.

“Roberts’ arc of disagreement with conservatives will be much more limited than with Kennedy,” says Mr. Fitton.

Limited enough to be an arc of triumph for conservatives? I think so.

Ralph Z. Hallow, the chief political correspondent of commentary, served on the Chicago Tribune, Pittsburgh Post-Gazette and Washington Times editorial boards, was Ford Foundation fellow in urban journalism at Northwestern University and resident at Columbia University Editorial-Page Editors Seminar.


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