The campaign to sway public opinion and President Donald Trump about his choice to fill the Supreme Court vacancy left by Justice Anthony Kennedy’s retirement is in its final hours. On a closely divided court there is much at stake with this nomination. As a lifelong Republican, I am angry about the unfair public treatment of some of the potential nominees and am ashamed of some of the anonymous sniping coming from my fellow conservatives.
I learned as a young lawyer that being a judicial conservative means you do not ignore, redefine or add to the text of the Constitution or the words of a congressional statute to achieve a policy outcome. I learned that a judicial conservative exercises humility, understanding that judges have an important but limited role in the nation’s constitutional scheme. Judicial conservatives do not weigh into issues that are rightfully the responsibility of the government’s elected branches. I learned that a judicial conservative puts aside personal biases and acts with integrity and the courage to do the right thing even if unpopular.
Being a judicial conservative means having a healthy respect for precedent, and being mindful of the public’s reliance on earlier decisions but willing to overturn those that are plainly wrong, as required by a judge’s oath of office.
Of course every potential nominee should be carefully vetted, but baseless attacks complicate the nomination process and increase the chances that the president fails to nominate the strongest candidate. For example, it was reported that District of Columbia Circuit Judge Brett M. Kavanaugh dissented in a case in which the circuit panel ruled to uphold the Affordable Care Act. Kavanaugh dissented on the basis that the court lacked jurisdiction. Unnamed conservatives argue that he should have written to invalidate the statute. I learned long ago that a true judicial conservative exercises restraint and does not decide or speak to the merits of a dispute where there is no jurisdiction.
The same reporting included another case where the District of Columbia Circuit ruled to allow an undocumented pregnant teen to get an abortion. Again, Kavanaugh dissented, and once again nameless conservatives argued that the dissent should have gone further, no doubt frustrated that Kavanaugh did not take on abortion rights even though he is bound as a circuit judge to follow Supreme Court precedent. I remember a time when true judicial conservatives did not act to advance a social agenda through dicta – words that have no legal bearing in the case at hand nor serve as precedent for future cases.
The most outrageous excuse given to oppose Kavanaugh is his service in the George W. Bush administration. He has been accused of being a “mainstream” or “establishment” Republican, as if this makes him an unreliable conservative. I remind my Republican friends that Justice Neil Gorsuch also served in the Bush administration, yet I do not recall conservatives using that as an excuse to question his commitment to the rule of law or to conservative principles. Based on what I know and experienced, Kavanaugh served with honor and distinction in the Bush administration. He carried out the president’s policies, and to penalize him now for his service to our country is unfair and wrong.
The president has a difficult job of trying to anticipate how someone will decide cases 25 or 35 years from now. History is full of examples of dashed expectations, disappointments and frustration over the decisions of justices once considered “reliable” by supporters. Surprises are never a good thing for an administration when it comes to appointments to the court. It is wise for this president to nominate someone who has an established track record and experience – much as Gorsuch had before his nomination – as a true judicial conservative.
I understand social conservatives’ frustration with the court and their desire to see a justice appointed who will advance and protect their interests. But we need to remember that the Supreme Court is not an extension of the White House, or of any political party or social movement. The court should never be perceived or used as a means to promote and protect a conservative policy agenda. If that happens, then conservatives lose credibility and the country is poorer for it.
Alberto R. Gonzales, former U.S. attorney general and White House counsel in the George W. Bush administration, is a law professor at Belmont University College of Law in Nashville, Tennessee.
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