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Remember when we were all celebrating Trump’s election because he would have the opportunity to nominate people who were supporters of the traditional understanding of the Constitution? How we were relieved that at least the Court would be dedicated to maintaining the rule of law and the foundations of this country?
As often happens when conservatives are nominated, the results historically have been a mixed bag.
Republicans seem to have a long history of picking justices who let us down. I finally saw a reasonable and insightful explanation of why we have repeatedly seen these outcomes, and what can be done to turn things around.
Senator Ted Cruz, in his book, One Vote Away: How a Single Supreme Court Seat Can Change History, provides a modern history of justices who were selected, and how close this country has come to losing on key issues. Cruz has a great deal of insight on this topic: out of law school he was a law clerk for Chief Justice William Rehnquist; he went into private practice with a small firm that specialized in constitutional and Supreme Court advocacy; was appointed solicitor general of Texas under Greg Abbott; wrote over 80 U.S. Supreme Court briefs and argued before the Court nine times. Throughout the book, he explains how justices who were thought to be certain conservatives did not rule conservatively. At the end of his book, he provides what I think is a brilliant assessment of the errors in judgment that have been made in selecting justices, and how Republican presidents can make better selections in the future.
First, Cruz points to the obvious:
Republicans nominees only shift in one direction: they shift to the left. ‘Evolving’ is the polite term. And it is because the pressure on a Supreme Court justice to move to the left is enormous. The press coverage consistently praises justices who vote with the left, heralding them as courageous heroes.
So how does a President get around the justices facing this inevitable pressure? Cruz lists some of the criteria a President should consider:
The justices who have been most faithful to the Constitution include Justice Scalia, Justice Thomas, my old boss Chief Justice Rehnquist, and Justice Alito. All of them share important characteristics: Before they were nominated, each of those justices had a long and demonstrated record. Each had served in the executive branch, each had defended conservative or constitutional positions, and, critically, each had been roundly criticized for doing so. (Italics are mine.)
Don’t these criteria seem obvious? Each one of them is critical to the performance of a Supreme Court justice. And yet when you look at the record of people like Anthony Kennedy, Sandra Day O’Connor, or John Roberts, they were sadly lacking in at least one or more of these criteria.
Ted Cruz also points out that the absence of these characteristics can be disastrous:
Typically, they have little to no record, they have assiduously avoided controversy, they have refrained from taking difficult stands, and they have avoided subjecting themselves to the harsh light of criticism. They have been timid where they could have been bold or assertive.
In the coming years, when some Supreme Court justices die or simply retire, the stakes will be greater than ever. If we have a Republican president in office, he or she must demand the very best of the best to fill these positions on the Court. His selections must be courageous people, demonstrate a record of defying the Leftist agenda, and be prepared to be criticized and even ostracized in the social circles of Washington, DC.
They must be prepared to take on even more vicious battles than they ever have to save the future of our country.Published in