This article first appeared in my Newsmax column on July 6, 2018
White House officials are working around the clock to ensure that President Trump is able to fulfill his promise to announce a Supreme Court nominee on Monday.
Last Wednesday, the president expressed his intent to choose a candidate from a list of 25 individuals, and this week Trump interviewed 4 to 6 candidates from that list.
Much drama surrounds the nomination, as Democrats fearfully ruminate on what Trump’s pick will mean for the future of decisions like Obergefell and Roe v. Wade.
Republicans eagerly await the decision, but not without hesitation. GOP faithfuls worry that whoever Trump chooses will not live up to expectations and fail to strictly adhere to the conservative agenda of sticking with the original intent of the Constitution.
In fact, in a recent interview Scott Beason and I conducted with John Malcolm, Director of Heritage's Meese Center for Legal & Judicial Studies, he stated that many conservatives remember the consequences of famous appointment disasters like William Brennan and Earl Warren.
Though it’s no doubt a momentous occasion when there is a vacancy on the Supreme Court, since it happens so infrequently, the country may not change as drastically as some Democrats believe. Based on the list of candidates, the Supreme Court will take a more conservative, originalist turn, but this will not be a departure from the Court’s direction of the past few years.
In reality, it should not be such a dreaded event for liberals.
The appointment is so highly anticipated because of Kennedy’s significance on the Court as the “swing vote.” Though Kennedy did side with the more activist justices in high profile social issue cases like Planned Parenthood v. Casey and Obergefell, it is forgotten that more often than not, Kennedy sided with the conservatives.
He had an expansive view of the First Amendment, as demonstrated in cases like Texas v. Johnson and Citizens United. Kennedy was also a strong advocate for conservative federalism, and leaned conservative on Second Amendment rights cases, like District of Columbia v. Heller and MacDonald v. Chicago.
In fact, in his last term, Kennedy voted with the conservative majority in 15 of 20 cases. He handed the conservatives important victories, including exalting religious freedom in Masterpiece Cakeshop and upholding Trump’s travel ban. The short-term impact of replacing Kennedy should therefore not be exaggerated. For the most part, Kennedy was a conservative justice who voted the same way as his replacement will likely vote.
Don’t forget, Kennedy is not the only swing vote on the Supreme Court. Chief Justice John Roberts has been known to slink away from the conservative majority, on occasion siding with the more liberal justices in cases like Sebelius (the Obamacare decision). Additionally, Justice Kagan has sometimes joined the opinions of more staunch conservatives, for example in Lucia v. SEC. Kennedy’s absence will not mean no more swing votes.
These swing votes are key in some high-profile cases, but on the whole, most cases decided by the Supreme Court are not 5-4 decisions. Liberal and conservative justices vote together more often than you would think. In a typical term, about 80 percent of votes are in support of the majority opinion, and only 20 percent of decisions are 5-4. The cases publicized by the media are the hot-button issues, but in general the Supreme Court addresses more mundane, legally technical questions. Less exciting issues like which stock tips should be considered insider trading, how credit card fees should be phrased, and patent disputes often garner unanimous decisions.
Democrats are concerned that Trump’s nominee will be a firebrand conservative who will turn legal precedent upside down. But this concern is vastly overblown. What is clear from the list put together by John Malcolm of the Heritage Foundation and others is that Trump’s pick will be an originalist. A justice adhering to originalism should not be cause for concern.
Originalism does not mandate that justices strictly follow the GOP platform, nor does it declare that decisions like Roe v. Wade should be overturned. What originalist judges are committed to is interpreting the Constitution and ensuring that Americans’ fundamental rights, as they were expressed by the Founders, are not violated.
Liberals worry that a conservative, originalist appointee would shake up the Court, but that would mean that the new justice would be a judicial activist. This is contrary to the tenets of originalism. An originalist justice would follow the Constitution and the law, not seek to drastically change them. Liberals worry about the future of previous court decisions that they know were not based on the Constitution. They worry that unconstitutional precedents could be overturned.
Take Antonin Scalia — the epitome of a conservative, originalist justice.
Scalia pioneered textualism. Before his tenure, justices were reasoning wildly, making decisions that didn’t seem to be rooted anywhere in the text of the law. Scalia rebelled against these interpretive methods, arguing that it was not the Court’s role to make law. He insisted that justices should adhere to the law, even if what it said was “stupid.”
Scalia made clear that in being originalists and looking to the text, justices should not be partisan. Sometimes, what the text said would be contrary to what they believed, and they should rule with the text, not their beliefs.
Scalia remarked, “The judge who always likes the results he reaches is a bad judge.”
He emphasized that judges should not “tinker with the Constitution to 'do what the people want,' instead of what the document actually commands” because then politicians appointing new judges wouldn’t choose the best candidates but “only those who agree with them politically.”
So, what would another conservative, originalist justice like Scalia mean for the future of the Court? It would mean that, for the most part, precedent would be preserved. First Amendment freedoms will be expected to win. “Equal protection” will mean exactly what it says, and the Court will be more color-blind with regard to issues like affirmative action. There will be resistance against the Chevron doctrine, and federal agencies being able to make their own law.
Despite the speculation that the Court would automatically overturn decisions like Roe v. Wade, there doesn’t seem too much of an appetite for this to happen in judicial circles. It has been the most notable abortion case, but there have been countless others; it would take more than a broad anti-abortion decision to erase all that precedent. Similarly, there has been no indication of a desire to approach the Obergefell decision, regardless of how thinly reasoned it may have been. The bottom line is that sweeping change will not happen overnight.
The apparent nominees whom Trump has already met are vastly qualified.
Amy Coney Bennett, a former clerk for Scalia and judge for the 7th Circuit, proved her tough backbone when she was harshly questioned by Sen. Diane Feinstein in her appointment hearing. Other top candidates include two judges who clerked for Kennedy, Brett M. Kavanaugh and Raymond M. Kethledge, and Amul R. Thapar of the 6th Circuit, who has a solid conservative track record.
John Cardillo, host of "America Talks Live" on Newsmax TV, addressed the concerns by some conservatives who were worried about Kavanaugh not being conservative enough and made a great point that if you examine his rulings it is evident that Brett Kavanaugh would be a Scalia conservative not a Sandra Day O'Conner moderate.
These individuals, among others, are staunchly conservative, and would likely bring an originalist, textualist, perspective to the Court. This should not be a cause for concern for Democrats who believe the Constitution is a set of rules that are changed by the people and not the courts. Sticking to the Constitution is not a bad thing. Our rights are defended by that document and are preserved in it, not in the philosophical musings of the judicial activists of the day.
Christopher Reid is an attorney out of Birmingham who owns his own general practice law firm, which handles Business, Family, and Probate Law and high-end litigation throughout the state of Alabama. Reid has held various policy positions, including working for the Alabama Policy Institute and the Heritage Foundation in Washington D.C., where he also worked for House Republican Whip Roy Blunt. In law school, he clerked for the Alabama Attorney General Office, and, after graduation, he became Health and Judiciary Policy Analyst for Alabama’s governor. His charitable work includes serving on the board of Sav-A-Life. Chris is a frequent co-host on The Scott Beason Show in Birmingham, writes political and legal commentary for publications including The Hill, The Washington Examiner, and has been quoted in The New Yorker. He regularly provides on-air expertise and political commentary for TV news shows on Fox, NBC, and Newsmax with JD Hayworth. To read more of his reports — Click Here Now.
Scott Beason is a former senator and currently hosts “The Scott Beason Show” A conservative radio show heard throughout Alabama on 101.1 FM from 10 a.m.–Noon, Monday through Friday.