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Supreme Court Hangs In Balance

Disappointment with summer rulings fuels push to pin down candidates on judicial vetting

Washington Times

By Ralph Z. Hallow

Deeply disappointed by the summer’s rulings on same-sex marriage and Obamacare, conservatives see the presidential election next year as a watershed not only for control of the Supreme Court but also an entire federal judiciary that has been tilted leftward by President Obama’s nominees.

But beyond platitudes and boilerplate answers, only a few of the presidential aspirants have offered any specific insights into how they would vet judicial nominees.

Retired neurosurgeon Ben Carson and Sen. Ted Cruz have given unusually detailed plans for how they would go about choosing judges and justices. Former Florida Gov. Jeb Bush used a private event in New Hampshire to declare that the only way to be certain nominees will be strict constitutionalists and conservatives is to pick nominees with long records of ruling from the bench.

In so doing, he separated himself from his father’s infamous picks of David H. Souter and Anthony M. Kennedy as justices and his brother’s pick of John G. Roberts Jr. as chief justice, all three of whom have brought scowls to the faces of conservatives.

The high court and its crucial role in directing the republic haven’t been central to the campaigns this time.

“I’m surprised the gay marriage decision in June hasn’t caused more discussion by now by the candidates about the Supreme Court’s role,” said C. Boyden Gray, White House counsel to President George H.W. Bush and an ambassador for President George W. Bush.

Some court watchers detect the odor of defeatism wafting in the campaigns’ ranks.

“Some Republicans treat these decisions like the weather — you can’t do anything about it,” said Tom Fitton, president of the public-interest law firm Judicial Watch. “But that 5-4 decision [legalizing same-sex marriage] upended thousands of years of not just Western tradition but what has been the fundamental basis of civilization — that marriage is between a man and a woman.”

The ultimate test for conservatives is for a judicial nominee to stick strictly to the meaning of the original words of the Constitution and to the intent of laws passed by Congress, and not to “legislate from the bench” or to divine intent and meaning.

Mr. Gray, a Bush loyalist, said Mr. Cruz is the one candidate who knows the Supreme Court, having clerked for a chief justice, William H. Rehnquist, and argued many times before the high court as the chief appellate attorney for the state of Texas.

Mr. Carson, the renowned neurosurgeon and electoral neophyte, said litmus tests don’t work but then described the litmus test he would use by carefully evaluating the judicial records of potential nominees to ensure they wouldn’t deviate from the original intent or meaning of the Constitution and laws.

The time for a litmus test has come, said Merrill Matthews, resident scholar at the Institute for Policy Innovation in Dallas. “Republicans tend to say they won’t impose a litmus test, but it’s probably time to change,” he said.

“Because they don’t impose a litmus test usually, they’ve gotten some pretty bad justices. There’s only three dependable conservatives on theSupreme Court,” Mr. Matthews said.

Read more at the Washington Times online.