Presidents have the duty to nominate persons to fill federal judiciary vacancies. Each of our 45 presidents made judicial appointments, and all but four nominated at least one justice for the U.S. Supreme Court.
According to the Court’s Home page, the Supreme Court “is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.”
The controversy that arises each time a vacancy occurs on the High Court in recent years regards the second of the Court’s two functions: its role as “the interpreter of the Constitution.”
The question now at the front of the debate about the Court is – as former New Jersey Superior Court Judge Andrew Napolitano put forth in chapter 2 of his book The Constitution in Exile – given that the Court addresses “issues the Founders never dealt with, should the Court treat the Constitution as a living document, allowing judges to interpret it according to the times? Should the Court try to discern the Founders’ ‘original intent’ and apply it to these new situations and issues?”
Typical of the wild responses to all things related to President Donald Trump by the increasingly socialist political Left, the opportunity that he now has to replace retiring Justice Anthony Kennedy – the Court’s “swing vote” – has them beside themselves, issuing feverish predictions of doom and gloom.
As the Court’s swing vote, Kennedy sometimes voted with the judicial conservatives, who commonly support the original text of the U.S. Constitution, and at other times voted with the judicial liberals, for whom the Constitution’s meaning changes over time.
Now, President Trump must nominate someone to fill that vacant spot on the bench, and is expected to pick another judicial conservative in the mold of the late, great Antonin Scalia, as he did by nominating Judge Neil Gorsuch to fill the Scalia Court vacancy.
The Founders, being the brilliant humans that they were, understood that a document intended to be the backbone of a unique and superior form of government, needed to promote broad principals that outlined how the republic should function and would endure forever.
Putting the individuals who have served and will serve on the Supreme Court into perspective, Constitutional scholar Mark Levin says in his book, Men in Black: “The biggest myth about judges is that they’re somehow imbued with greater insight, wisdom, and vision than the rest of us; that for some reason God Almighty has endowed them with superior judgment about justice and fairness. But the truth is that judges are men and women with human imperfections and frailties,” like the rest of us.
With such a wide spectrum of human qualities, how can we trust important judicial decisions to the luck of the draw, the nine people sitting on the Court at any given time?
Therefore, great care must be used when selecting someone for a seat on the Court, and someone with judicial humility who will support the principals of the Constitutions should be chosen, rather than someone who will bend the meaning of the Constitution to suit some personal preference or perceived social need.
Imagine a Court with 5 (or more) from the contingent that decide cases not based on a stable set of principles, but on the passions of the day, which might be different passions 10 years hence, and likely were different passions 10 years earlier.
Under the guise of “the Founders could not possibly have imagined _____ (fill in the blank with your favorite issue),” liberal judges often make decisions based not upon Constitutional principals, but based upon their idea of what should be, or what they believe is best. The Constitution is not a “living” document; its foundational principals live on forever.
As good a blueprint for a nation as our Constitution is, its creators realized that changes may at times be needed, and it has been amended 17 times since the first ten amendments, the Bill of Rights, were enacted shortly after the states ratified the Constitution.
Within its original 4,400 words is the process for changing it. It is a difficult process, by design, so that changes would have to be very strongly supported by the states. Neither those original words nor those of the amendments authorize changes to be made by judges or by five Supreme Court Justices.
America became the freest, most desirable nation in the world by following the guidance of the Constitution. And despite the changes that have occurred in the last few decades through judicial lawmaking, America still is a great nation.
But we cannot afford to keep traveling down the road of judicial twists and turns that liberal judges create, or the nation will become unrecognizable, and just one more socialist quagmire.
So while the Left continues to rely on scare tactics to create opposition to Trump’s choice for the Kennedy vacancy, even before that choice is made or announced, the president is duty-bound to make a nomination, and will likely propose someone who appreciates and honors the guidance of the U.S. Constitution, and will not legislate from the bench. For that we should all be thankful.