In Choosing a Justice, Trump Should Focus on Philosophy, not the Confirmation Fight

 

With Trump planning to announce his Supreme Court nominee at 8 pm ET Tuesday, I thought I’d post an excerpt of an LA Times piece. In it, law professor Saikrishna Prakash and I recommend that the President keep the Constitution front and center when choosing:

Pryor is probably the most conservative. He famously called Roe vs. Wade an “abomination” because it discovered a right to abortion in the 14th Amendment’s due process clause. A former Bush administration Department of Justice official, Gorsuch held that the free exercise clause in the 1st Amendment meant that the government couldn’t force Catholic nuns and religious companies to include birth control in their insurance plans. Hardiman, a less prominent conservative, voted against New Jersey’s tight limits on the open carry of firearms.

How should the president make his choice?  It should have nothing to do with how a nominee fits in to Trump’s coterie of friends, family or admirers. A Supreme Court seat is not a bauble to hand out to chums or aides in the manner of a monarch granting titles to faithful servants. Nor should the president care if he hits it off with a candidate. Presidents spend no time with members of the court. George W. Bush reportedly asked one of his potential nominees, J. Harvie Wilkinson III, about his exercise routine. That is simply irrelevant.

Instead, the president should focus like a laser on judicial philosophy. Trump must nominate a justice based on his view of the proper interpretation of the Constitution. The oath he swore —  to “preserve, protect and defend the Constitution of the United States” — means that just as he wouldn’t sign an unconstitutional bill, he must not nominate a judge who holds views at odds with the Constitution.

One more thing: In making his choice, Trump shouldn’t worry about Democratic opposition or the expected confirmation fight. That is no way to make America great again.

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  1. Valiuth Inactive
    Valiuth
    @Valiuth

    We know Trump will use the most important personal criteria to make this selection. He will pick the one with the best hair.

    • #1
  2. PHCheese Inactive
    PHCheese
    @PHCheese

    I don’t think Trump needs a sophomoric lecture from the LA Times.

    • #2
  3. Kozak Member
    Kozak
    @Kozak

    It’s Gorsuch.

    • #3
  4. DocJay Inactive
    DocJay
    @DocJay

    I remember this article that Professor  Yoo wrote where he declared that Donald Trump would not be likely to nominate a conservative justice.   It would be nice to see an,”I was wrong” statement.

    • #4
  5. Franco Member
    Franco
    @Franco

     

    Valiuth (View Comment):
    We know Trump will use the most important personal criteria to make this selection. He will pick the one with the best hair.

    Judging by your avatar, that disqualifies you immediately.

     

    • #5
  6. rebark Inactive
    rebark
    @rebark

    John Yoo: George W. Bush reportedly asked one of his potential nominees, J. Harvie Wilkinson III, about his exercise routine. That is simply irrelevant.

    I wasn’t paying close attention at the time, but that sounds relevant. Exercise keeps you alive, generally, and the longer a justice is alive, the longer they stay on the court.

    • #6
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