July 09, 2018
When the Supreme Court reconvenes this October, odds are, there will be a new face on it. Whose, we'll find out tonight. "An exceptional person will be chosen!" the president tweeted yesterday. And if Justice Neil Gorsuch is any indication, Donald Trump knows exactly how to find one.
"I have long heard that the most important decision a U.S. president can make is the selection of a Supreme Court Justice," the president told reporters over the weekend. Americans got a glimpse of how seriously Trump takes these nominations when he set out to fill Antonin Scalia's seat. Now, with a second opportunity to put his stamp on the court, the president has a chance to go two-for-two with strict and thoughtful constructionists.
For Trump's opponents, the real heartburn isn't who the nominee is so much as what he or she represents: a return to the rule of law. As Orrin Hatch warned in an op-ed on Friday, "Democrats dream of packing our courts with activist judges who act less as impartial arbiters of the law and more as super-legislators: men and women who not only interpret the Constitution but actively work to change its meaning through their opinions." No wonder he points out, that liberals have "made a circus of confirmation hearings over the years." They want "to politicize the process because ultimately they seek political judges -- partisan allies who will uphold their constitutionally questionable legislation when it comes before the courts."
Our communication has been very clear. We anticipate the president nominating a judge who will not use the judiciary as a workbench to craft policies in the shadows of the Constitution. Instead, we expect them to work in the light of that guiding document's plain text. And based on his track record with Senate Majority Leader Mitch McConnell (R-Ky.) over the last year and a half, we have no reason to expect otherwise. The dynamic duo has spent the last several months bringing courts of every level in line with the Constitution with dozens of qualified new hires. In fact, they've been so successful at it that Donald Trump has officially confirmed more circuit court judges at this point in his term than any president in history.
That's quite a coup for McConnell, who's made it his mission to crank out as many federal and circuit court confirmations as possible. Forty-two -- and counting. And while all eyes are on the big prize, Justice Anthony Kennedy's replacement, these lower court nominees are the ones who will do the lion's share of the work – 95 percent of which will never reach the Supreme Court. Scott Jennings, a strategist of McConnell's, thinks the GOP leader's strategy of playing the long game will pay off. "Laws can be changed, regulations can be wiped away," he pointed out, "but these federal judicial appointments are lifetime." For generations, he said, "we'll be talking about the Trump-McConnell courts and their impact."
The American people certainly seem to grasp the importance of this moment. In a poll just released by the Economist, 64 percent said that the next choice of a Supreme Court justice is "important to them personally" (including 78 percent of Republicans and 68 percent of Democrats). Of course, part of the reason people sense the gravity of these appointments is because every court, including SCOTUS, has gradually assumed a power it doesn't have: making the law, instead of interpreting it. President Trump's vision -- and the larger conservative movement's -- is to restore the judiciary to its limited role.
Progressives, the New York Times's David Leonhardt warns, won't like that. If they want to win on their issues, they'll "have to do so in a small-d democratic way, by winning elections." For now, most Americans will probably agree: the most important decision on SCOTUS was already made -- by voters in 2016.
Tony Perkins' Washington Update is written with the aid of FRC senior writers.