Travis Weber is Vice President for Policy at Family Research Council. Alexandra McPhee is Director of Religious Freedom Advocacy at Family Research Council. This article appeared in The Daily Caller on November 9, 2018.
The midterm results are in, and while much media attention is focused on the House switching to Democratic control, Republicans have not only held but gained ground in the Senate.
This means a number of things, but perhaps the most important is that it will now be even easier to confirm good, originalist judicial nominees. Appointing originalist judges ensures that religious liberty is protected and that pro-life policies are upheld across our nation.
During his 2016 campaign, then-candidate Donald Trump put forward a list of potential nominees (all originalists) from which he pledged to pick someone to fill the late Justice Antonin Scalia’s vacant Supreme Court seat. His commitment helped win the support of skeptical voters.
In 2016, 21 percent of voters said the Supreme Court was “the most important factor” in their vote, and they broke 56 percent to 41 percent for Trump.
These voters have not been disappointed, as the Trump administration and Republican leadership in the Senate have done an outstanding job nominating and confirming Supreme Court justices and other federal judges.
President Trump has set an incredible confirmation pace with 84 federal judges confirmed so far, including 29 to the federal appeals courts and two Supreme Court justices. Consequently, the United States has enjoyed the appointment of many to the bench who ask not what they want the law to be, but what the law says.
The courts continue to be an important issue to voters. Seventy-six percent of voters view the Supreme Court as “very important” to their vote in these midterms. In one recent poll, at least a third of evangelical voters said that abortion and the Supreme Court are a factor in their voting decisions.
Democrats’ abysmal treatment of Supreme Court nominee Brett Kavanaugh only reminded voters of what’s at stake and boosted Republican support in the run-up to the midterms. In fact, all three Democrats who voted against Kavanaugh (Claire McCaskill, Heidi Heitkamp and Joe Donnelly) lost their re-election battles to Republicans, and the one Democrat (Joe Manchin) who voted for Kavanaugh won.
The originalists being confirmed by the Senate approach the law in an “ideologically neutral” manner. But the activist, outcome-oriented judges often praised by liberals have distorted the legal landscape in the favor of the radical Left, most notably in the law surrounding the supposed right to abortion.
It has thus become the duty of process-oriented judges and political conservatives to fight for an even playing field. As such, the originalist philosophy, sometimes called “the conservative viewpoint” has essentially been a prerequisite — and rightfully so — for all judicial appointments emerging from the Trump administration and confirmed by the Republican-controlled Senate.
Justice Scalia once observed, “The Court’s inclination to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.”
It was abortion that led the Democrats and the Left to ruthlessly throw in everything and the kitchen sink at Brett Kavanaugh during his recent Supreme Court confirmation hearings in a failed attempt to destroy his reputation with unfounded accusations.
While Justice Neil Gorsuch was as much a constitutionalist as Kavanaugh, his confirmation didn’t result in a solidly originalist Court. The Left knew it was Kavanaugh’s confirmation that would result in a majority of constitutional conservatives on the Supreme Court.
Religious liberty also stands to gain when originalist judges are on the bench. Just last week, the Supreme Court agreed to hear a case challenging a large cross-shaped veteran’s memorial in the Washington, D.C., area. This case is expected to have broad implications for religion in the public square nationwide.
When such issues come before the courts, it is crucial to have judges who understand an originalist view of the Establishment Clause and the First Amendment — a view that recognizes that religion has a place in the public square of our country and doesn’t deserve to be erased.
This much is clear: elections matter when it comes to judicial appointments. With its Republican gains, today’s Senate will continue the positive trend of appointing originalist judges who will uphold pro-life and pro-religious liberty policies.