Writing about President Trump’s Supreme Court nominee Brett Kavanaugh, Brookings Institute scholars Maya Sen and William Spaniel point out that “a like-minded Senate and president can benefit from keeping the nominee’s preferences opaque, as it makes it harder for the nominee to be exposed as sharing the president’s views?” Americans who assume that presidents choose nominees on the basis of their height, weight, shoe size and complexion will be surprised to learn that they think about the Constitution.
So what does D.J. Trump thinks about our supreme law? Any reader looking to me for an answer might as well look elsewhere. During the 2016 campaign he committed himself to the National Rifle Association’s interpretation of the Second Amendment, but only after the NRA corrected some of his earlier views. This brought him into line with every other GOP presidential candidate in recent memory. He also expressed disdain for Roe v. Wade, but nearly as I can determine this disdain only emerged when the decided to run for president as a Republican.
I’ve asked devoted Trumpophiliacs among my GOP associates when they first noticed Trump’s devotion to originalist or textualist constitutional interpretation. None of them had a date for me, although some seemed convinced that their savior had always been an originalist. All I’m willing to say with conviction is that he has relied on the Federalist Society for constitutional guidance since taking office. This pleases me and I believe that he has every reason to be satisfied with their advice.
The Sen-Spaniel assumption that it’s important to separate the nominee’s views from the nominator’s may reflect their legal training and experience. Anyone who has followed a trial or a good TV series about lawyers and courts knows that the first priority of a defense attorney is to suppress evidence.
Seriously. Think about it. Transparency is never the first priority. Opacity is preferred.
If you remember previous nomination fights, and have begun to track the one before us, you recognize that the nominee’s position resembles that of a criminal defendant. He is charged with intent to commit crimes against the “living constitution.” It follows that the defendant/nominee must seek shelter in evasion, indirection, obnubilation.
If any president ever knowingly nominated a Justice whose views militated against his own, I have not heard of him. Nevertheless a president has to know that the Justice he settles on the bench has no obligation to him. The Supreme Court Justice’s independence is guaranteed by two things. He has tenure until he assumes room temperature, and his salary may not be slashed. These protections apply during the nominating president’s life time and may continue for decades after his term, and life, have ended.
The defendant/nominee may avail himself of the cover afforded by the “Ginsburg Rule” invoked in 1993 by the chairman of the Senate Judiciary Committee during the Ruth Bader Ginsburg nomination hearings. That chairman, Joe Biden, explained “I do think it’s appropriate to point out that, judge, you not only have a right to choose what you will and not answer, but in my view, you should not answer a question of what your view will be on an issue that clearly is going to come before the court.” Invocation of the Rule forces the nomination opponents to rely on the nominator, rather than the nominee, for evidence of his future performance.
Now let’s leave our discussion of principle behind and think about politics, starting with Governor LePage’s contribution. “I am confident that Senator Collins,” he announced on June 11, “as she has done with prior judicial nominations, will vote upon the President’s nominee based upon his qualifications and experience, not on partisan politics. I hope other senators do the same.”
Paul does not mention Independent-Angus. No need, the governor knows, as we all know, how our Angus will vote. I’ve found no Muddy Stream Media speculation about how Independent-Angus plans to vote either. They have already guessed. There will be a delay, because he’s skilled at playing “thoughtful.” He will, in due course, discover something “troubling.” His favorite liberal columnists will formulate some sophisticated pretext for voting NO. He will announce his decision. Senator Schumer will smile. The Democratic Caucus will applaud with constrained enthusiasm.
Our governor encourages Susan Collins to do the right thing, while implicitly reminding us that she did the right thing when she voted for Neil Gorsuch. He stresses qualifications and experience, as opposed to anticipations, prophecies and warnings.
In her first reaction Collins’s said she would “not support a nominee who demonstrated hostility to Roe v. Wade.” And when she met with President Trump earlier she told him of this position suggested that some of the 25 names on his list of possible nominees were unacceptable to her. This seemed compatible with demands from the Democrat and offered hope to the optimists among the Left-Lurchers, but the vigilant among them remember that she overcame her doubts about Gorsuch’s fidelity to R v. W. They don’t trust her.
Demand Justice, a nonprofit group formed by Democratic operatives to make judicial appointments a core electoral concern for progressive voters has made it clear that they don’t expect Collins to vote according to their wishes. A hashtag campaign, #HangersForCollins, has started up urging social media shock troops to send coat hangers to the senator. These are intended to remind her of the days before RvW, when squeamish people stayed away from alleys all over Maine in fear that they would see puddles of blood shed by girls aborted with coat hangers. I’m told by the Collins Bangor office that they now have fair collection of hangers, although the flow has diminished.
The Demand Justice crowd must be feeling discouraged when they read the senator’s most recent statement: “Certainly, when you look at the credentials that Judge Kavanaugh brings to the job, it will be very difficult for anyone to argue that he’s not qualified for the job,” Collins said. “He’s clearly qualified for the job, but there are other issues involving judicial temperament and his … judicial philosophy that also will play into my decision.” The nomination prosecution may find hope in this careful statement. I doubt their hope will be justified by events.
As usual, a letter from Mr. Frary improves my vocabulary, as well as my understanding of issues and processes. There is, and will continue to be, an overabundance of obnubilation this election cycle.
Thank you, Professor.
There is no living constitution, it is as it was written. There is absolutely nothing constitutional about Roe v. Wade NOTHING. And this would not be the first time that SCOTUS overruled itself, or that congress has and always for the better. SCOTUS ruled in 1857 (Dredd Scott v. Sanford) that Negroes were property and could not sue for their freedom as they were not citizens of the United States and had no rights under the Constitution. this decision was overruled and lead to the creation of the 13th and the 14th amendments and the civil rights act of 1866. SCOTUS was once again overruled, Plessy v. Ferguson(1896), stated that there was no protection against segregation in the Constitution, there wasn’t as long as those who were segregated were given equal treatment, ex. if whites could ride the bus, blacks could ride the bus, there was no laws against seating arrangements, Plessy v. Ferguson would be overruiled by Brown v. The Board of Education of Topeka(1954) ruled that even though Negros were given equal treatment, that it was still inherently against the 14th amendment to separate them. This ruling made it so blacks could attend school with whites in the same class rather than separate ones.
Roe v. Wade goes directly against the 14th amendment and the equal protection clause, this is also the same clause that makes murder illegal. “A person’s life, liberty or property cannot be taken without due process.”
As soon as the egg becomes fertilized by the sperm, the life process has begun, it is growing and developing independently of the mother’s wishes, she has no control over this process. Now prior to fertilization, she does have a choice, have sex with contraceptives or don’t have sex with contraceptives or don’t have sex at all. Those are choices that she can make. Abortion is murder as defined by the 14th amendment, the life of that person has been taken without due process. Roe v. Wade needs to be overruled.
But SCOTUS should be filled with Constitution driven justices not political driven justices. Their job is to rule on the constitutionality of a law brought before them, not whether said law pushes a political agenda. In DC v. Heller(2008) the SCOTUS ruled that banning law abiding citizens from owning handguns as a means of protection violated the second amendment’s clause of the right to keep and bear arms. This ruling was again upheld in McDonald v. The City of Chicago(2010). These two cases are evidence of the role SCOTUS plays, these rulings should be unanimous in favor of the Constitution but they were 5-4 rulings, which means that 4 of the justices were politically driven not constitutionally driven when they made their judgments.
Wonderful Professor Frary. As usual you have a historic view brought to the present that enlightens your readers and endears them to you! In short, I say stop with the political games and appoint Mr. K. He is the real deal of a good human being with exemplary credentials for the job.
Thank you Professor Frary for a sensible essay.
I’m old fashioned. I think the Senate should approve any nominee sent who has integrity, is an excellent legal scholar, and is respected by peers. The Senate should approve Kavanaugh. But the GOP was also wrong not to approve Obama’s pick. Both parties have politicized this, and they should stop it.
The GOP didn’t approve or reject Garland, they just delayed consideration. The Constitution says plainly that the Senate may establish its own operating rules – by simple majority. Very small-D democratic.
But I’m even more old-fashioned. Repeal the 17th amendment.
It’s a rare day when Scott Erb and I agree on something. Could not have said it better
Frostproof:
McConnell’s unprecedented year delay may well result in a smaller Supreme Court. Regardless of whether or not Kavanaugh is appointed, the precedent is now set that a party must have control of both Senate and Presidency to appoint a justice. Since Reagan, that’s an increasingly higher bar to leap. Breaking tradition on a strictly partisan basis is not conservative behavior. Careful what you wish for when the shoe is on the other foot.
Yes, indeed, be careful. Someone should have mentioned that to Harry ‘Shades’ Reid in 2013 when he set a precedent by pulling the nuclear trigger for lower court appointments. Democrats have to deal now with a President they didn’t expect and the unintended consequences of two SCOTUS appointments – and the threat of what could happen if they decide to filibuster the 2nd.
The United Senate held no hearings about the USSC nominations at all for the first 127 years after our constitutional foundation. There were a few brief hearings for the next 61 and almost no controversy. Since the 1991 Robert Bork and Justice Clarence Thomas hearings the nomination process has become an arena for political conflict. It’s impossible to visualize any set of circumstances that will can change that.
Trump doesn’t read, he doesn’t study, he has no understanding of history, he is not a conservative or a liberal. He strictly wants to appoint a Justice that will cover his butt when his house of cards comes tumbling down.
William Gilliland