As Trump replaces Kennedy, time for some conservative judicial activism

I have a few words of advice for President Trump in choosing a replacement for retiring Supreme Court justice Anthony Kennedy: Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens, Sandra O'Connor, David Souter.

Republican presidents have campaigned on appointing conservative justices to the Supreme Court for over a half-century, but they have been badly burned more often than not.  Leaving office after two terms, President Eisenhower said, "I made two mistakes [Earl Warren and William Brennan], and both of them are sitting on the Supreme Court."

The fact is that Republican-appointed justices have caused as much constitutional mischief as Democratic appointments – or more.  Nixon appointee Harry Blackmun authored Roe v. Wade, Ford appointee John Paul Stevens wants to repeal the Second Amendment, Reagan appointee Sandra O'Connor (herself an affirmative action pick) voted to uphold affirmative action and abortion, and Kennedy discovered after 230 years that there are "constitutional rights" to anal sodomy and "marriage" between members of the same sex.

To be sure, there have been some Republican successes – notably Clarence Thomas.  An affirmative action pick if ever there was one, Thomas turned out to be the Court's most principled and thorough scholar of the Constitution and the justice with the most fidelity to the original intent of the Founders.

But it has not been enough.  Time and again, Republican presidents have botched historic opportunities to drive a stake into the heart of the left-wing agenda, the success of which depends far more on using the judiciary to ramrod leftist policies down the throat of the public than it does on winning elections.

One of the reasons why Republican presidents have failed so often is that they have been unwilling to impose ideological and political "litmus tests" on high court nominees, merely expecting that an "originalist" justice will produce sound jurisprudence.

The Democrats have no self-imposed limitation.  They have, for decades, openly demanded that candidates for judicial positions declare fealty to decisions like Roe v. Wade that are poorly reasoned and unsupported by the text of the Constitution.  Democratic appointees have voted as a political bloc, driven not by the text of the Constitution, but by left-wing policy outcomes.  Has anyone ever thought Ruth Ginsburg might surprise us and vote in favor of gun rights, or that Stephen Breyer might vote to strike down affirmative action?  Never.

Like it or not, the U.S. has devolved from a constitutional republic, in which Congress is supposed to be the dominant branch, into a kritarchy – a dictatorship of judges – in which the judiciary either directly contradicts the Constitution when it sees fit (e.g., affirmative action and gun control) or invents new "constitutional rights" outright when it feels like it (such as the "right" to abortion or the "right" to anal sodomy).

The election of President Trump in 2016 was a last-ditch "Hail Mary" pass with no time left on the clock that prevented Hillary Clinton & Co. from winning the Super Bowl of politics.  But Trump's victory has not been cemented yet.  The crooked referees in the FBI, the media, the courts, and the special counsel's office are still reviewing the instant replay to get his political touchdown nullified.

Now Trump has a historic opportunity to save the Constitution.  The stakes are that high.  He must nominate the most hardcore judicial conservative he can find.  Impose an ideological litmus test on the Second Amendment, immigration, abortion, and affirmative action, and demand complete Republican Party loyalty in the 51-49 Senate to get that nominee confirmed by the barest of margins.

He's got nothing to lose anyway.  The Democrats cannot be appeased.  They are certain to employ savage demagoguery to "Bork" even a "moderate" nominee.  So the president might as well go all out.  As a casino owner, surely he must understand that sometimes all the chips are on the table.

It's time for conservatives to play the game of Supreme Court power politics to win – bigly.

I have a few words of advice for President Trump in choosing a replacement for retiring Supreme Court justice Anthony Kennedy: Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens, Sandra O'Connor, David Souter.

Republican presidents have campaigned on appointing conservative justices to the Supreme Court for over a half-century, but they have been badly burned more often than not.  Leaving office after two terms, President Eisenhower said, "I made two mistakes [Earl Warren and William Brennan], and both of them are sitting on the Supreme Court."

The fact is that Republican-appointed justices have caused as much constitutional mischief as Democratic appointments – or more.  Nixon appointee Harry Blackmun authored Roe v. Wade, Ford appointee John Paul Stevens wants to repeal the Second Amendment, Reagan appointee Sandra O'Connor (herself an affirmative action pick) voted to uphold affirmative action and abortion, and Kennedy discovered after 230 years that there are "constitutional rights" to anal sodomy and "marriage" between members of the same sex.

To be sure, there have been some Republican successes – notably Clarence Thomas.  An affirmative action pick if ever there was one, Thomas turned out to be the Court's most principled and thorough scholar of the Constitution and the justice with the most fidelity to the original intent of the Founders.

But it has not been enough.  Time and again, Republican presidents have botched historic opportunities to drive a stake into the heart of the left-wing agenda, the success of which depends far more on using the judiciary to ramrod leftist policies down the throat of the public than it does on winning elections.

One of the reasons why Republican presidents have failed so often is that they have been unwilling to impose ideological and political "litmus tests" on high court nominees, merely expecting that an "originalist" justice will produce sound jurisprudence.

The Democrats have no self-imposed limitation.  They have, for decades, openly demanded that candidates for judicial positions declare fealty to decisions like Roe v. Wade that are poorly reasoned and unsupported by the text of the Constitution.  Democratic appointees have voted as a political bloc, driven not by the text of the Constitution, but by left-wing policy outcomes.  Has anyone ever thought Ruth Ginsburg might surprise us and vote in favor of gun rights, or that Stephen Breyer might vote to strike down affirmative action?  Never.

Like it or not, the U.S. has devolved from a constitutional republic, in which Congress is supposed to be the dominant branch, into a kritarchy – a dictatorship of judges – in which the judiciary either directly contradicts the Constitution when it sees fit (e.g., affirmative action and gun control) or invents new "constitutional rights" outright when it feels like it (such as the "right" to abortion or the "right" to anal sodomy).

The election of President Trump in 2016 was a last-ditch "Hail Mary" pass with no time left on the clock that prevented Hillary Clinton & Co. from winning the Super Bowl of politics.  But Trump's victory has not been cemented yet.  The crooked referees in the FBI, the media, the courts, and the special counsel's office are still reviewing the instant replay to get his political touchdown nullified.

Now Trump has a historic opportunity to save the Constitution.  The stakes are that high.  He must nominate the most hardcore judicial conservative he can find.  Impose an ideological litmus test on the Second Amendment, immigration, abortion, and affirmative action, and demand complete Republican Party loyalty in the 51-49 Senate to get that nominee confirmed by the barest of margins.

He's got nothing to lose anyway.  The Democrats cannot be appeased.  They are certain to employ savage demagoguery to "Bork" even a "moderate" nominee.  So the president might as well go all out.  As a casino owner, surely he must understand that sometimes all the chips are on the table.

It's time for conservatives to play the game of Supreme Court power politics to win – bigly.