Perhaps a better constitution would be what Lash proposes, with less opportunity for mischief by judges, but that is not the Constitution we have.
There has been a lot of discussion in the blogosphere about what candidate would be better for the rule of law—Hillary Clinton or Donald Trump. At City Journal I recently pointed out that both candidates pose some legal dangers.
But whoever is elected President, there can be no doubt that a Republican Senate would be best for originalism and thus the long-term prospects of the rule of rule. Begin with the election of Clinton, because that is the far more probable outcome and thus should be counted most heavily in the calculus. She would nominate justices who are outright hostile to the meaning of the Constitution. At the Presidential debate she said nothing about wanting justices who would follow the law, just judges who have empathy and who would follow her litmus tests of being in favor of Roe and against Citizens United. That latter comments were too much even for the Washington Post.
Even more importantly, she comes from a progressive movement that is dedicated to transforming the Constitution without going through the amendment process. As I said in my City Journal essay:
Clinton is a progressive, and progressivism in the United States was born in no small measure as a revolt against the fundamental rule of law. Progressives didn’t like the basic structures of the Constitution—federalism and the separation of powers—because these features thwarted social change and created obstacles to the efficient, administrative government that progressives felt could engineer a better world. . . . In the latter half of the twentieth century, progressive focus shifted to celebrating judges who would fabricate federal rights that were not actually in the Constitution—like the right to have an abortion—and impose them on the nation.
It is obvious that a Republican Senate would be more likely to force Clinton to nominate justices who would read the Constitution as law. Indeed, it is possible that they could simply refuse to confirm anyone unless Clinton were to nominate a judge in the mold of Antonin Scalia. Given that Clinton will be one of the most unpopular Presidents ever to be inaugurated, there might well be few political costs to that strategy.
In very unlikely event that Trump is elected, a Republican Senate would also be better for the long-term rule of law. Trump has offered a list of estimable justices from whom he has said he would fill the Scalia vacancy. But there remains a concern that Trump would break his promise. That is more likely with a Democratic Senate who might be all too happy to confirm a candidate who would undermine the Constitution as written or who like the Harriet Miers knew so little that she would drift left with the current of the legal profession. In contrast, a Republican Senate would likely resist such an appointment, as they did with Miers. Moreover, Trump would want to curry favor with a Republican Senate on judges given the other deviations from Republican policy for which he would want acquiescence.
One of the sorry, but unsurprising, outcomes of the Trump candidacy has been division among conservative legal intellectuals. But they should be united on agreeing that a Republican Senate is essential. Unlike attacks on Trump, praise for that kind of Senate would annoy their academic colleagues, but it would do more than any other political outcome for the rule of law.