OPINION:
Speculation about a potential retirement by Justice Samuel A. Alito Jr. has intensified over the past two months.
It began on March 20 after the 76-year-old justice fell ill at a Federalist Society event in Philadelphia and was taken to a hospital out of caution. Talk increased when President Trump told Maria Bartiromo on April 14 in a Fox Business interview that he is prepared to nominate new justices, potentially up to three, if vacancies arise.
Mr. Trump praised Justice Alito as one of the greatest justices of all time.
Still, speculation turned to action in the Senate that same week. Senate Majority Leader John Thune and Judiciary Committee Chairman Charles E. Grassley publicly stated that Republicans stand ready to move quickly to confirm a replacement before the midterm elections in November.
Although critics cite anonymous sources to suggest otherwise, those claims lack substantiation and the weight of the evidence points to a vacancy sooner rather than later.
If Justice Alito does, in fact, step down, then the next Supreme Court nomination will either lock in the gains of originalism or squander them for a generation.
History is unambiguous. Roughly half the justices that Republican presidents have placed on the high court over the past 50 years have failed to deliver consistent constitutional fidelity. We cannot afford another contribution to that 50% failure rate.
Choosing a replacement for Justice Alito must be based on hard data and exhaustive research, not on reputation, verbal assurances or a single impressive speech. Anything less risks repeating the very mistakes that have cost us so dearly.
Those of us who care about the Constitution and conservatism have spent four years preparing for this moment. Together, we have spent thousands of hours researching more than 35 prospective nominees.
From that disciplined effort, we forged and signed on to a single, rigorous standard for identifying a great constitutionalist justice: one with “the best long-term, demonstrable record of commitment to the constitutional role of judges, which is to decide cases according to the original meaning of the Constitution and legislative texts, and to never legislate from the bench.”
That standard is nonnegotiable. Every name, no matter how well-connected or how loudly endorsed, must be filtered through it without exception.
Yet too many recommendations still arrive unsupported by any demonstrable vetting. We must stop accepting them. No matter how distinguished the recommender, the proper response is straightforward: “Can you provide the research to support that name?”
Real research is not a favorable ruling here or a well-delivered speech there. It is a comprehensive, long-term examination of a nominee’s writings, rulings and public statements across decades.
History has taught us the price of shortcuts. In 1990, New Hampshire Gov. John Sununu personally assured President George H.W. Bush that David H. Souter would be a “home run.”
He was not. Justice Souter became a reliable vote for the left, a strikeout who ultimately played for the other team. Conservatives paid for that unvetted promise for decades. Have we learned from these mistakes?
More recently, some trusted voices insisted, without any supporting research, that then-Judge Neil M. Gorsuch would never disappoint social conservatives on the issues they care about most. Yet our own research identified weaknesses in LGBTQ matters in Mr. Gorsuch’s record. Those warnings were brushed aside.
Judge Gorsuch was nominated and confirmed, and in 2020, he authored the majority opinion in Bostock v. Clayton County, a decision that radically expanded transgender special rights by rewriting Title VII of the Civil Rights Act. The very assurances offered without evidence proved disastrously wrong.
We cannot allow personal assurances or “Trust me” endorsements to substitute for evidence again. Every recommendation must be supported by research. If the research does not exist, or if it does not demonstrate a consistent, long-term commitment to original meaning and judicial restraint, the name should be set aside — no matter who offers it.
The Constitution is not a living document to be radically updated by the newest judges; it is a fixed charter whose meaning is determined by its text and original public understanding. The Supreme Court has improved over the past five years, but replacing one of our best justices with a prospect with a sketchy record could mean that we trade a Samuel A. Alito Jr. for a John G. Roberts Jr. and lose ground in the court at a critical time in our nation’s history.
Justice Alito has been a home run. If he chooses to retire, then we must honor his legacy by insisting that his replacement has the best long-term, demonstrable record of commitment to constitutionalism and conservatism.
Anything less would be an unforced error. So, this time, let the data decide.
• Walker Wildmon serves as the CEO and a member of the board of directors for AFA Action, the 501(c)(4) governmental affairs affiliate of American Family Association. He is also the vice president of American Family Association. He and his wife, Lexie, are happily married with five children.
Please read our comment policy before commenting.