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Judicial Nominations Unite the Right, Even Never-Trumpers

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The  latest nominations of ten fine lower court judges makes clear that President Trump is the best President for judicial selection since at least Ronald Reagan, particularly in his willingness to nominate conservative legal academics likely to have extraordinary influence.  He has certainly been aided by having a Republican Senate, and by relying on the network of the Federalist Society, but the nominations are his own.

And they will receive almost universal approbation among conservatives, classical liberals and libertarians. That includes those who supported Trump and those who were Never-Trumpers, although it is somewhat embarrassing for those Never Trumpers who said the candidate could not be trusted to select good judges or even to choose justices from the list he announced.   As I said before the election, precisely because of his other heterodox stances, Trump would follow through on his unifying judicial commitments.

Appointing judges whose ideal is to enforce the Constitution as written unites almost all strands of the political right. For traditional conservatives, the Constitution represents an anchor against too rapid change. For libertarians, the Constitution contains valuable limitations on government power and protections of rights. For both, originalism  protects the rule of law against the latest social engineering fads of the left.

But one might wonder whether this union will survive the increasingly fierce debate between judicial engagement and judicial restraint among constitutional theorists on the right.. Given the harshness of the words exchanged, it might seem surprising that Trump’s judges receive praise from both quarters. These appointees, as fine as they are, cannot be simultaneously apostles of judicial engagement and judicial restraint.

Nevertheless, I think it unlikely that this debate will cause a political split on the right’s judicial preferences for the foreseeable future. First, the engagement versus restraint controversy is an academic debate among constitutional theorists.  Most judges are not academics, let alone constitutional theorists, and they are likely to hold a more middling perspective. That is fine with me:  one middling perspective in my view is theoretically correct!

Perhaps more importantly politics forces groups into coalitions.  Most libertarians and conservatives prefer the other’s interpretive methodology as compared to the increasingly aggressive progressivism of left-liberal judicial review, because advocates of both engagement and restraint at least begin with the Constitution’s original meaning.  Political enemies often help bind coalition partners who are in less than full agreement. But if Trump were to replace Justices Kennedy, Breyer and Ginsburg, the theoretical debates would then gain political resonance.   Political victories are never permanent in part because they make real divisions out of the theoretical fault lines that previously existed.

Reader Discussion

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on May 11, 2017 at 00:21:59 am

"Increasingly fierce"? I thought the dialogue was pretty civil.

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Mark Pulliam
on May 11, 2017 at 10:42:45 am

The latest nominations of ten fine lower court judges makes clear that President Trump is the best President for judicial selection since at least Ronald Reagan, particularly in his willingness to nominate conservative legal academics likely to have extraordinary influence.

I'm intrigued to read this. In reviewing the great accomplishments of Trump's first 100 days, everyone cites his success in getting a conservative on the Supreme Court. My reaction was that this was something that ANY Republican would have done; Trump's only contribution to the process was getting elected. I don't mean to denigrate that contribution, but let's keep it in perspective. Yet McGinnis suggests that I've underestimated Trump's contribution: Other Republican presidents have failed to perform as well as Trump has managed to do.

Let's explore this: What caused past Republican presidents to nominate less desirable candidates (from McGinnis's perspective)? Were past Republicans more moderate than Trump, and therefore less willing to nominate such extreme candidates? Or did they have more political favors to fulfill and thus lacked the free hand that a novice such as Trump enjoys? Or were they more arrogant than Trump? Whereas Trump may feel no special shame in tacitly acknowledging his ignorance on matters of judicial appointments, and thus may be willing to delegate these decisions to others (such as the Federalist Society), other presidents may have felt the need to demonstrate independent judgment in making such consequential decisions.

Any thoughts?

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nobody.really
on May 11, 2017 at 11:34:47 am

[…] at the Library of Law & Liberty, John O. McGinnis also praises Trump’s judicial picks and then goes on to speculate about why they have been so uniformly […]

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Image of As Trump Reshapes the Judiciary, Libertarian-Conservative Fault Lines Are Exposed | The Daily Headline News
As Trump Reshapes the Judiciary, Libertarian-Conservative Fault Lines Are Exposed | The Daily Headline News
on May 11, 2017 at 11:37:45 am

[…] at the Library of Law & Liberty, John O. McGinnis also praises Trump’s judicial picks and then goes on to speculate about why they have been so uniformly […]

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Image of As Trump Reshapes the Judiciary, Libertarian-Conservative Fault Lines Are Exposed | Droolin' Dog dot Net
As Trump Reshapes the Judiciary, Libertarian-Conservative Fault Lines Are Exposed | Droolin' Dog dot Net
on May 11, 2017 at 14:42:26 pm

Nobody:

I think you may be on to something here.
Clearly, The Trumpster's bag of "Political Favors Owed" is not as large as past presidents.
Perhaps, *arrogance* (or, better, the need to *project* knowledge / power / influence) was higher in previous Prez's.

But here is something else to consider:

Could it be that he, contrary to the dominant narrative by the Left AND the Never Trumpsters, does not perceive himself as the Grand Leader (as in Le Grand Charles) but RATHER as a Manager, in some ways not unlike a CEO.
Consider the discretion he has afforded the military (with reservations I approve of this BTW). contrast that with Obama, Clinton and Carter who not only wanted extensive control but sought to micromanage the Armed Forces.
Not so, The Trumpster who appears to be comfortable playing the CEO role not El Jefe.

This is a strength (to my mind) BUT it may very well prove to be his weakness. It is a strength because it allows those afforded his confidence to work toward what they believe to be a proper solution without fear of *undue* political influence. It is a weakness because in some instances (more later) it provides the opportunity for those who do not share his "particular" vision or feel for a situation to exercise influence over others AND over The Trumpster.

Specifically, The Trumpster will (is) get in trouble because he has disregarded the old adage:

"NEVER hire someone that you cannot FIRE"

Think Jared Kushner and Ivanka here. Given an opportunity to vote for this dynamic duo, would Trump voters have voted for THEM? I think not - trouble lurks here.

So his "CEO delegation" skills may be of particular benefit when selecting candidates for the Judiciary; not so much for specific policy prescriptions.

Anyway, it all promised to be interesting!

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gabe
on May 11, 2017 at 17:46:53 pm

[…] at the Library of Law & Liberty, John O. McGinnis also praises Trump’s judicial picks and then goes on to speculate about why they have been so uniformly […]

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Image of As Trump Reshapes the Judiciary, Libertarian-Conservative Fault Lines Are Exposed | Christian Conservative Daily
As Trump Reshapes the Judiciary, Libertarian-Conservative Fault Lines Are Exposed | Christian Conservative Daily

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

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