This column by ACRU Policy Board Member Ken Blackwell and ACRU Fellow Ken Klukowski was published August 28, 2015 by CNN.
When the next president is sworn in on January 20, 2017, three of the Supreme Court’s justices will be in their eighties. Ruth Bader Ginsburg, Anthony Kennedy and Antonin Scalia — a liberal, a moderate, and a conservative, respectively — have all served for at least two decades, but a combination of well-documented health issues and the reality of advancing years raises the prospect that the next president could be poised to nominate at least three justices to the top court.
So why aren’t conservatives talking about this more?
After all, all manner of major issues are being decided by the court, in many cases by a 5 to 4 margin. Indeed, issues ranging from the Environmental Protection Agency’s ability to regulate power plants and private water sources to the legality of Obamacare to presidential power during wartime and the question of whether terrorists can demand a civilian trial could all be overruled with a one-vote shift in the balance of the court.
With that in mind, Republicans should adopt the opposite position to the one taken by Democrats and vow: “A candidate who doesn’t promise to nominate proven conservatives to the Supreme Court will never get my vote.”
Democrats are, of course, united in the kind of Supreme Court justice they want to see. Issues like same-sex marriage and gun control frequently fail to go the way they want at the ballot box, so liberals use the court as an unelected, unaccountable superlegislature to enact as constitutional edits the laws the left would like to pass but cannot get the American people to support.
Tragically, Republicans are actually divided on this issue.
True, the GOP base supports the judicial philosophy that President Ronald Reagan and Attorney General Edwin Meese championed. That philosophy is originalism: every provision of a written law — including the U.S. Constitution as the Supreme Law of the land — must be interpreted according to the meaning that American citizens of ordinary intelligence and education would understand those words to mean.
But the Republican establishment — mainly coastal dwellers with elite credentials — actually prefer moderate judges to conservatives and appear to have little interest in restoring the Constitution’s strict limits of governmental power. As a result, Republican-appointed judges can run the full spectrum of judicial philosophy.
Some may point to President George W. Bush’s White House as progress, following as it did the “no more Souters” mantra. This was a reference to former Justice David Souter, nominated by the first President Bush on the advice of his chief of staff, but who turned out to be a stridently liberal judicial activist.
However, while the second President Bush did not appoint any Souters, only one of his two Supreme Court appointees, Samuel Alito, is a solid conservative. The other, Chief Justice John Roberts, has proven himself a moderate. With that in mind, it seems safe to assume that the GOP base will in future be demanding “no more Robertses” from any future Republican White House.
Ultimately, though, Republican primary voters simply have not heard enough from the candidates about these issues. Yes, some either have an excellent record as governors making appointments or senators in confirmation fights. Others have a mixed record, while some have a horrible record or none at all. With this in mind, just promising to nominate “very conservative” nominees is not good enough.
Whatever issue Republican voters care about — whether economic, social, or national security — the Supreme Court has the last word, sometimes rightly, other times wrongly. This means that even if a candidate vows to grant voters whatever is on their wish lists, failure to make the case that he or she can be trusted to spend the necessary political capital on getting constitutional conservatives on the Supreme Court makes such promises irrelevant.
The fact is that the issue of Supreme Court nominees should be a deal-breaker for every Republican primary voter, and we can only hope that the moderators of the next Republican debate will give this issue the attention it deserves.
The candidates must be forced to get specific — and to do so now.