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Why a Republican Senate Would Be Best for the Rule of Law

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.

Reader Discussion

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on October 17, 2016 at 02:13:59 am

[I]t is possible that [a Republican Senate] could simply refuse to confirm anyone unless Clinton were to nominate a judge in the mold of Antonin Scalia. Given the Clinton will be one of the most unpopular Presidents ever to be inaugurated, there might well be few political costs to that strategy.

Just as I said. The Republicans have, at long last, dispensed with even an iota of a figleaf of a pretext of an argle bargle that Advise and Consent is anything but an exercise in raw political power. Garland, a guy who had received nearly unanimous support when he was put on the DC Circuit, fails to warrant even a hearing today. Why? Because that's what suits the political agenda of the Republican Senate. Sure, they make some argument about letting the public speak through the choice of the next president. But since that argument was ludicrous on its face, even McGinnis concedes that Republicans would have no more reason to break their filibuster after we get a new president than before.

So we're in the land of Supreme Court Survivor, the morbid Republican game of calculating the days until Ginsburg dies and conservatives can try to seize control once again.

This may well be the Republican's best strategy, but even McGinnis will see the fly in the ointment: Evidence shows that the longer a Justice is on the court, confronting difficult issues that don't always fit neatly into simplified conceptual models, the more that Justice is likely to adopt a broader, more liberal, perspective. In short, the Republican Senate can stick a stopper in the bottle, but they can't keep the contents from improving with age.

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nobody.really
on October 17, 2016 at 12:03:30 pm

Selective memory, again!

The Dems were the pioneers in the survivor game were they not?

That being said: Yep, the GOP is stalling. Far better to just have an Up or Down vote, deny the nomination and get on with it!

As to McGinnis's assertion that a GOP Senate would be far better at assuring that "rule of law" jurists are confirmed, I would simply point him to the past history of GOP Senates that gave us Sotomayor, Kagan, etc.
Yep, Johnny McCain - "Elections do have consequences" - except for GOP establishment types who are apparently free to renege on their *conservative* (whatever that is) claims / promises.

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gabe
on October 17, 2016 at 16:29:20 pm

McCain Vows Supreme Court Blockade Will Continue Through Clinton’s Presidency:

“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up,” McCain said....

[E]ventually, Democrats will change the rules to abolish filibusters of Supreme Court nominees. (Republicans will decry this foul measure and justify any subsequent actions of their own as justified revenge.) ....The fact that it is McCain, a personal friend of Clinton and as strong an institutionalist as can be found in the Senate, who is proposing to extend the blockade indefinitely shows just how deep the commitment runs through the party.

The old norms held that presidents were given some deference in filling Supreme Court vacancies. Senators might object to a particular nominee on the basis of ideological extremism or lack of qualifications, but the president’s general right to appoint a member of his judicial team was considered sacrosanct. Like all the other norms holding back the exercise of power, this one has now collapsed.

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nobody.really
on October 17, 2016 at 18:55:35 pm

Yep - saw it.

Of course, McCain was also the one who has previously let Obama's choices go through - "Elections do have consequences" was uttered by Johnny Boy McCain. More than likely another electoral ploy to demonstrate his conservative creds. I'm betting that he will fold as has done in the past.

My point is, however, still valid. The Dems were the pioneers of this field of "Judicial Survivor"

Let's be honest here, Like you, I would prefer a quick up and down vote. We apparently differ only on whether it should be up or down!

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gabe
on October 17, 2016 at 20:43:04 pm

Well put.

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nobody.really

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.