Con­ser­va­tives yearn for specifics on Supreme Court

The Washington Times Weekly - - Politics - BY RALPH Z. HAL­LOW

Deeply dis­ap­pointed by the sum­mer’s rul­ings on same-sex mar­riage and Oba­macare, con­ser­va­tives see the pres­i­den­tial elec­tion next year as a wa­ter­shed not only for con­trol of the Supreme Court but also an en­tire fed­eral ju­di­ciary that has been tilted left­ward by Pres­i­dent Obama’s nom­i­nees.

But be­yond plat­i­tudes and boil­er­plate an­swers, only a few of the pres­i­den­tial as­pi­rants have of­fered any spe­cific in­sights into how they would vet ju­di­cial nom­i­nees.

Re­tired neu­ro­sur­geon Ben Car­son and Sen. Ted Cruz have given un­usu­ally de­tailed plans for how they would go about choos­ing judges and jus­tices. For­mer Florida Gov. Jeb Bush used a pri­vate event in New Hamp­shire to de­clare that the only way to be cer­tain nom­i­nees will be strict con­sti­tu­tion­al­ists and con­ser­va­tives is to pick nom­i­nees with long records of rul­ing from the bench.

In so do­ing, he sep­a­rated him­self from his fa­ther’s in­fa­mous picks of David H. Souter and An­thony M. Kennedy as jus­tices and his brother’s pick of John G. Roberts Jr. as chief jus­tice, all three of whom have brought scowls to the faces of con­ser­va­tives.

The high court and its cru­cial role in di­rect­ing the repub­lic haven’t been cen­tral to the cam­paigns this time.

“I’m sur­prised the gay mar­riage de­ci­sion in June hasn’t caused more dis­cus­sion by now by the can­di­dates about the Supreme Court’s role,” said C. Boy­den Gray, White House coun­sel to Pres­i­dent Ge­orge H.W. Bush and an am­bas­sador for Pres­i­dent Ge­orge W. Bush.

Some court watch­ers de­tect the odor of de­featism waft­ing in the cam­paigns’ ranks.

“Some Repub­li­cans treat th­ese de­ci­sions like the weather — you can’t do any­thing about it,” said Tom Fit­ton, pres­i­dent of the pub­lic-in­ter­est law firm Ju­di­cial Watch. “But that 5-4 de­ci­sion [le­gal­iz­ing same-sex mar­riage] up­ended thou­sands of years of not just Western tra­di­tion but what has been the fun­da­men­tal ba­sis of civ­i­liza­tion — that mar­riage is be­tween a man and a woman.”

The ul­ti­mate test for con­ser­va­tives is for a ju­di­cial nominee to stick strictly to the mean­ing of the orig­i­nal words of the Con­sti­tu­tion and to the in­tent of laws passed by Congress, and not to “legislate from the bench” or to divine in­tent and mean­ing.

Mr. Gray, a Bush loy­al­ist, said Mr. Cruz is the one can­di­date who knows the Supreme Court, hav­ing clerked for a chief jus­tice, Wil­liam H. Rehn­quist, and ar­gued many times be­fore the high court as the chief ap­pel­late at­tor­ney for the state of Texas.

Mr. Car­son, the renowned neu­ro­sur­geon and elec­toral neo­phyte, said lit­mus tests don’t work but then de­scribed the lit­mus test he would use by care­fully eval­u­at­ing the ju­di­cial records of po­ten­tial nom­i­nees to en­sure they wouldn’t de­vi­ate from the orig­i­nal in­tent or mean­ing of the Con­sti­tu­tion and laws.

The time for a lit­mus test has come, said Mer­rill Matthews, res­i­dent scholar at the In­sti­tute for Pol­icy In­no­va­tion in Dal­las. “Repub­li­cans tend to say they won’t im­pose a lit­mus test, but it’s prob­a­bly time to change,” he said.

“Be­cause they don’t im­pose a lit­mus test usu­ally, they’ve got­ten some pretty bad jus­tices. There’s only three de­pend­able con­ser­va­tives on the Supreme Court,” Mr. Matthews said.

Mr. Car­son’s sec­ond, and by far bolder, view about the tra­di­tional ju­di­cial supremacy over the other two branches of gov­ern­ment is that Congress, lower leg­isla­tive bod­ies, as well as de­part­ments and agen­cies un­der cer­tain con­di­tions, may thumb their noses at Supreme Court de­ci­sions that are based on the premise that the Con­sti­tu­tion is a “liv­ing” doc­u­ment.

The come-from-nowhere top-tier Repub­li­can can­di­date has said it’s time to re­view the va­lid­ity of Mar­bury v. Madi­son, the 1803 land­mark de­ci­sion that de­clared the high court to be the fi­nal ar­biter of whether a fed­eral or state or lo­cal law is con­sti­tu­tional.

Mr. Cruz, the go-it-alone-when-nec­es­sary con­ser­va­tive from Texas, is just as bold in tout­ing the twin ideas of re­ten­tion elec­tions and term lim­its for jus­tices, de­spite the Con­sti­tu­tion’s lan­guage that says mem­bers of the fed­eral ju­di­ciary may serve as long as they please, so long as they can as­cend, with or with­out as­sis­tance, the steps to the bench over which they pre­side.

Ar­ti­cle 1, Sec­tion 1 of the Con­sti­tu­tion says as much: “The Judges, both of the supreme and in­fe­rior Courts, shall hold their Of­fices dur­ing good Be­hav­ior, and shall, at stated Times, re­ceive for their Ser­vices a Com­pen­sa­tion which shall not be di­min­ished dur­ing their Con­tin­u­ance in Of­fice.”

Is­su­ing bad de­ci­sions was not con­sid­ered a lapse from good be­hav­ior, though fail­ing to cap­i­tal­ize a noun, any noun, ap­par­ently was.

Some­times de­ci­sions that are good for the body politic are badly ar­rived at, as even orig­i­nal-in­tent purists ac­knowl­edge.

The Supreme Court used the Con­sti­tu­tion’s in­ter­state commerce clause to jus­tify fed­eral reach into guar­an­tee­ing equal ac­cess to pub­lic ac­com­mo­da­tions na­tion­wide, for ex­am­ple.

Sen. Rand Paul of Ken­tucky has his own tack, ar­gu­ing that con­ser­va­tives should think twice about at­tack­ing the courts be­cause judges have played an im­por­tant role in de­fend­ing the rights of in­di­vid­u­als fight­ing gov­ern­ment over­reach.

Whether that means ju­di­cial ac­tivism in the cause of anti-ju­di­cial ac­tivism is no vice is a mat­ter yet to be de­bated.

Jeb Bush told a New Hamp­shire crowd in Au­gust that past pres­i­dents — whom he didn’t name, but the past two Repub­li­cans in the White House were his fa­ther and his brother — have nom­i­nees “that don’t have a proven record” be­cause they’ve been too wor­ried about fac­ing an in­creas­ingly bloody Se­nate con­fir­ma­tion process.

“Be­cause they don’t

im­pose a lit­mus test usu­ally, they’ve got­ten some pretty bad jus­tices. There’s only three de­pend­able con­ser­va­tives on the

Supreme Court.” — Mer­rill Matthews, res­i­dent scholar at the In­sti­tute for Pol­icy In­no­va­tion

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