A Conservative Supreme Court Nominee Is Not Enough

When it comes to future U.S. Supreme Court nominees, one has to pay careful attention to semantics – i.e., the meaning of words and phrases in a particular context.  This is particularly important because of the propensity of the Democrats, aided and abetted by the liberal mass media, to twist and distort language to further their left-wing agenda.

 

Here's what I mean.

 

Say you want a conservative nominee for the U.S. Supreme Court.  You have to ask: what does conservative mean?  A natural answer is one who preserves the law.  Well, not so fast.  In the past, the make-up of many Supreme Courts has been very liberal – so much so that some critics have taken to labeling them as near lawless

 

Over the years, activist justices have increasingly given in to the temptation to push the limits of their power beyond the realm of the judicial and into that of the legislative.

 

The courts have found that restricting themselves to mere reading and interpretation of the Constitution makes this power play very difficult. To break those restrictions, they have long used sources of authority outside the Constitution to justify activist decisions. Everything from opinion polls to "penumbras" (imagined partial shadows cast by the actual words of the laws or the Constitution) have been fodder for revolutionary decisions.

 

As if these well-known flights of judicial fancy aren't bad enough, several justices have started using the opinions of foreign courts as precedents for judging the constitutionality of our laws. The "Legal Times" commented on the many junkets that justices have been taking to study the European court system: "But the justices' wanderlust has taken on extra significance in light of the Court's newfound interest in invoking the rulings and view of foreign courts and international authorities in its own jurisprudence."

 

As a result, there are numerous Supreme Court decisions on the books crafted out of thin air, far adrift from U.S. written law.  Such decisions might be called extra-constitutional. 

 

In a time when a take-charge Republican like Donald Trump has his hand on the court nomination process, Democrats will argue that a "conservative" nominee is needed – one who will uphold the concept of stare decisis – Latin for "let it stand."  Under stare decisis, court rulings give what you could call the official meaning to the original law upon which the decisions were made. 

 

Here's the game the left wants to play.  When in a dominant role on the court, liberals say the Constitution and other laws are "living documents," which effectively means they are like Play-Doh in the hands of elite opinion.  If and when the court balance shifts to a majority with a traditional view, the liberals will argue for conservatism, for stare decisis, hoping to lock in their past gains as they wait for a more favorable time to further push the country leftward via the courts. 

 

Supreme Court Justices Antonin Scalia and Clarence Thomas reject such thinking.  They are "originalists."  An originalist is one who interprets the Constitution and all other written laws according to their public meaning at the time they were enacted.  To them, original intent has priority over prior rulings. 

 

Clearly, a USSC with an originalist bent would jeopardize a wide range of advances the left has made through its abuse of the judiciary.  Liberals are not used to this.  Their paradigm is that the natural order of things is like a ratchet in their favor.  That is, they make advances when the sun shines on them and at worst stall out temporarily when it does not.  But never do liberals expect to see their advances undone, especially when it comes to the judiciary. 

 

Where does that leave us with Trump's possible nominees? 

 

In a pretty good position, actually.  Randy Barnett, a professor of law and director of the Georgetown Center for the Constitution, writes:

 

I'm pleased to see that President-elect Trump is echoing Scalia. Last week Mr. Trump's transition team affirmed that he will nominate judges 'who are committed to interpreting the Constitution and laws according to their original meaning.' During the campaign Mr. Trump released a list of 21 potential candidates for Scalia's seat. Those on the list with whom I am familiar would be sympathetic to originalism.

 

Prof. Barnett goes on to pose two simple questions the Trump people must ask potential court nominees to eliminate any possible confusion there might be over the semantics. 

 

First: Will they elevate precedent over the original meaning of the constitution, thereby locking in a highly distorted reading of federal power? Or will they insist on interpreting America's founding document and its amendments as they were written?

 

Second: Do they, like Judge Scalia, have the courage of their convictions-- the internal fortitude to stand against the public's demand for this or that outcome, and do what they believe to be right? Or will they bend with the political wind to protect the 'legitimacy' of the court?

 

If the Trump administration follows through on its promises to appoint judges with an originalist view – and not just on the Supreme Court, but on all other courts, too – and the Republican Senate has the backbone to stand firm and withstand the hysteria from the Democrats and the liberal media, great things can be accomplished. 

 

So, not to be snookered, "conservative" nominees to the court are not enough.  The nominees must be originalists in the mold of Judge Scalia.  

 

As analysis of the just concluded election continues, it is becoming more and more evident what a political earthquake the election of Donald Trump is.  The safe spaces for the left are rapidly vanishing.  America can, indeed, be made great again.

When it comes to future U.S. Supreme Court nominees, one has to pay careful attention to semantics – i.e., the meaning of words and phrases in a particular context.  This is particularly important because of the propensity of the Democrats, aided and abetted by the liberal mass media, to twist and distort language to further their left-wing agenda.

 

Here's what I mean.

 

Say you want a conservative nominee for the U.S. Supreme Court.  You have to ask: what does conservative mean?  A natural answer is one who preserves the law.  Well, not so fast.  In the past, the make-up of many Supreme Courts has been very liberal – so much so that some critics have taken to labeling them as near lawless

 

Over the years, activist justices have increasingly given in to the temptation to push the limits of their power beyond the realm of the judicial and into that of the legislative.

 

The courts have found that restricting themselves to mere reading and interpretation of the Constitution makes this power play very difficult. To break those restrictions, they have long used sources of authority outside the Constitution to justify activist decisions. Everything from opinion polls to "penumbras" (imagined partial shadows cast by the actual words of the laws or the Constitution) have been fodder for revolutionary decisions.

 

As if these well-known flights of judicial fancy aren't bad enough, several justices have started using the opinions of foreign courts as precedents for judging the constitutionality of our laws. The "Legal Times" commented on the many junkets that justices have been taking to study the European court system: "But the justices' wanderlust has taken on extra significance in light of the Court's newfound interest in invoking the rulings and view of foreign courts and international authorities in its own jurisprudence."

 

As a result, there are numerous Supreme Court decisions on the books crafted out of thin air, far adrift from U.S. written law.  Such decisions might be called extra-constitutional. 

 

In a time when a take-charge Republican like Donald Trump has his hand on the court nomination process, Democrats will argue that a "conservative" nominee is needed – one who will uphold the concept of stare decisis – Latin for "let it stand."  Under stare decisis, court rulings give what you could call the official meaning to the original law upon which the decisions were made. 

 

Here's the game the left wants to play.  When in a dominant role on the court, liberals say the Constitution and other laws are "living documents," which effectively means they are like Play-Doh in the hands of elite opinion.  If and when the court balance shifts to a majority with a traditional view, the liberals will argue for conservatism, for stare decisis, hoping to lock in their past gains as they wait for a more favorable time to further push the country leftward via the courts. 

 

Supreme Court Justices Antonin Scalia and Clarence Thomas reject such thinking.  They are "originalists."  An originalist is one who interprets the Constitution and all other written laws according to their public meaning at the time they were enacted.  To them, original intent has priority over prior rulings. 

 

Clearly, a USSC with an originalist bent would jeopardize a wide range of advances the left has made through its abuse of the judiciary.  Liberals are not used to this.  Their paradigm is that the natural order of things is like a ratchet in their favor.  That is, they make advances when the sun shines on them and at worst stall out temporarily when it does not.  But never do liberals expect to see their advances undone, especially when it comes to the judiciary. 

 

Where does that leave us with Trump's possible nominees? 

 

In a pretty good position, actually.  Randy Barnett, a professor of law and director of the Georgetown Center for the Constitution, writes:

 

I'm pleased to see that President-elect Trump is echoing Scalia. Last week Mr. Trump's transition team affirmed that he will nominate judges 'who are committed to interpreting the Constitution and laws according to their original meaning.' During the campaign Mr. Trump released a list of 21 potential candidates for Scalia's seat. Those on the list with whom I am familiar would be sympathetic to originalism.

 

Prof. Barnett goes on to pose two simple questions the Trump people must ask potential court nominees to eliminate any possible confusion there might be over the semantics. 

 

First: Will they elevate precedent over the original meaning of the constitution, thereby locking in a highly distorted reading of federal power? Or will they insist on interpreting America's founding document and its amendments as they were written?

 

Second: Do they, like Judge Scalia, have the courage of their convictions-- the internal fortitude to stand against the public's demand for this or that outcome, and do what they believe to be right? Or will they bend with the political wind to protect the 'legitimacy' of the court?

 

If the Trump administration follows through on its promises to appoint judges with an originalist view – and not just on the Supreme Court, but on all other courts, too – and the Republican Senate has the backbone to stand firm and withstand the hysteria from the Democrats and the liberal media, great things can be accomplished. 

 

So, not to be snookered, "conservative" nominees to the court are not enough.  The nominees must be originalists in the mold of Judge Scalia.  

 

As analysis of the just concluded election continues, it is becoming more and more evident what a political earthquake the election of Donald Trump is.  The safe spaces for the left are rapidly vanishing.  America can, indeed, be made great again.

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