PrintApril 7, 2018
What Should Trump's Litmus Test Be for Judges?
For longer then I care to remember, judicial appointments have been politicized. This unfortunate situation was started by Democrats. In a form of half-hearted self-defense, it has been mimicked by the GOP. But as is the case of much in life, the initiator has an inherent advantage and knows how to play the game better than copycats.
Proof?
While there have been a number of very commendable Supreme Court picks by the GOP -- Clarence Thomas, Samuel Alito, Anthony Scalia, and Neil Gorsuch --- there have also been dubious ones such as Anthony Kennedy (Reagan), John Paul Stevens, (Ford), Sandra Day O'Connor (Reagan), and David Souter (George H. Bush).
The uninformed might say, "Some good, some bad. What's the big deal?" The big deal is that the Democrats never nominate a loser to their cause, never one who will let the written law and intent of the Constitution stand in their way of legislating from the bench. This makes the contest asymmetric. It's like going to a casino with the Democrats being the house. The odds, albeit they might be small, are always in favor of the establishment. And because of that seemingly insignificant advantage, on average, players (conservatives) are guaranteed to go home with far less than they came in with.
But with the coming of Donald Trump, things are changing. And it's not just the nomination of Neil Gorsuch to the Supreme Court. He's just the tip of emerging conservative awareness on the importance of the courts, so many of which are quite frankly out of control A lot of this has to do with Trump himself. He's a man who is willing to break out of old molds, or as Victor Davis Hanson puts it, cut Gordian knots.
Plus, Trump made the judiciary a focal point in his successful campaign for the presidency. Furthermore, the president repeatedly has stated that he aims to make reforming the courts a major part of his legacy.
When it comes to the federal courts, Trump is a man who thinks big. His objective is nothing less than to end the progressive state, much of which is based on extra-constitutional judicial activism. In doing so, the president has deviated from the path of his Republican predecessors. In the past, if a Republican president posed a litmus test for judicial appointments, it would be on a single issue, usually a social issue such as right to life.
For better or worse, however, it has been more or less conceded that homosexual marriage is settled law and that Roe v. Wade is not going to be overturned. So now, under Trump's directive, the conservative lawyers complying lists for possible court picks have a new litmus test by which to screen candidates. The president is looking for men and women who will challenge "the broad power federal agencies have to interrupt laws and enforce regulations, often without being subject to judicial oversight. Those who are not on board with this agenda, the White House has said, are unlikely to be nominated by the president."
If successful, this court strategy, in conjunction with cabinet picks like Scott Pruitt at the EPA, will significantly shrink the body of federal regulations and policies that touch almost every aspect of American life. This has been a dream of conservatives since the days of Franklin Roosevelt's New Deal --- a roll back of the size and scope of the federal government. Trump's action on judges is tantamount to a political hurricane of Category 5.
The seemingly downgrading of social issues has not bothered social conservatives who have expressed nothing but delight at Trump's nominees. Part of the explanation is that judges who are skeptical of the power of the bureaucracy are also likely to limit radical social policies mandated by liberal courts and enforced by federal muscle.
Because of vacancies, Trump could conceivably handpicked over 30-percent of the country's federal judges before his first term is over. Since his nominees tend to be relatively young, a Trump federal judiciary will benefit the country for years to come. The Democrats know this. And because their leftist, America degrading agenda has a low probability of legitimately passing legislatively, the Democrats obstruct, obstruct, obstruct, hoping victory for them in the 2018 election will dent Trump's court reform effort.
The 2018 election is vital for yet another reason. One can speculate with a fair amount of confidence that one of the reasons frail Supreme Court justices such as Ruth Bader Ginsberg and Anthony Kennedy are still hanging around is the hope a Democrat-controlled senate will attenuate Trump's future nominees to the high court. If that were to happen, it would be a setback.
None of what is written here is esoteric. It's known by one and all. This is why the behavior of the #nevertrump crowd and the those who demand conservative purity from Republican candidates is so puzzling, so counter-productive. It's a phenomenon explainable only perhaps by a psychiatrist. Hopefully more studied minds will prevail come November.
