Playing Politics with the Constitution

What kind of judge do we want as a replacement for Justice Anthony Kennedy?

Folks are talking about a President Donald Trump nominee being a shoo-in because Republicans have a majority in the Senate, and there’s no filibustering of judicial nominations.  I’m not so sure.

The Left, of course, are crying the End of Times and the end of Roe v Wade, but that’s less a factor than a more pernicious conflict in the offing.

Late Thursday, the president met with a bipartisan group of six senators who will play a pivotal role in selecting Mr Kennedy’s successor because they have deviated from their party on key votes in the past. The lawmakers signaled they want an ideological centrist….

Those Senators included Judiciary Committee Chairman Chuck Grassley (R, IA), Susan Collins (R, ME), Lisa Murkowski (R, AK), Joe Donnelly (D, IN), Heidi Heitkamp (D, ND), and Joe Manchin (D, WV).

Litmus tests and centrism.  Collins and Murkowski look like they’re going to hold out for someone who’ll explicitly protect Roe.  I’d like to see that ruling at least adjusted, but a single, narrow issue should not be a deal maker or breaker.  Litmus tests are out of place here.

Others of that crowd are holding out for a centrist, a middle of the roader, so as not to too badly upset the balance of ideologies on the Supreme Court.  The problem with centrism, though, is that it is committed to finding consensus on a case before the Court and doing so for the sake of consensus not because that would represent the best ruling.

Moreover, consensus-building gives too much opportunity to deviate from the text, to legislate by that deviation from the bench, even to amend the Constitution from the bench.  No.  There can be no compromise here.  The words of the Constitution and of any Constitutional law are fixed, and any alteration of them can only be a political decision, not a judicial one.

Nor is there any place for ideology on the Court or in any court.  The Constitution is written and amended by the People, laws are written and enacted by the political branches of our government.  Our judiciary’s task is to apply the Constitution and laws to particular cases before them.  Ideology has no place in the application; ideology, to the extent it has a role in government, is a political matter alone.

No.  We shouldn’t be playing politics with the Supreme Court picks, naïve as that seems.  The best pick for this Justice, and for all nine Justices in their turn, is someone who will uphold the Constitution and hold laws accountable to the Constitution.  That requires a textualist.  Full stop.


Unfortunately, any two of those six Senators are enough to kill a nomination.  Or any one of them, since Senator Jeff Flake (R, AZ) has said he’ll block all judicial nominations until he gets his way on wholly unrelated matters.  Trump and Senate Majority Leader Mitch McConnell (R, KY) have their work cut out for them.  This is not a slam-dunk matter.

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