This is the most important early decision of Trump’s presidency.
As we react, and overreact, to every report regarding who might serve in the forthcoming Trump administration, let us make sure we keep our eye on the prize. For there is one decision to come soon after the inauguration that I believe could very well be the barometer for his presidency.
That decision will be who Trump nominates to succeed Antonin Scalia on the U.S. Supreme Court.This is the one decision the Trump presidency cannot get wrong — even slightly. This has to be a hundred percenter. A no doubter. This is no time for a John “Obamacare” Roberts or an Anthony “Rainbow Jihad” Kennedy redux.
This is the replacement for Scalia we’re talking about, so this needs to be someone whose judicial philosophy is embedded like the Rock of Gibraltar in his or her record. No guesswork, just someone with the sort of bedrock originalism Scalia was known for, and young enough to helm the spot for a couple of decades at least.
Nothing less than the ideological balance of the court is at stake in this decision. While I’ve spent much of my career fighting judicial oligarchy masquerading as stare decisis — and I remind everyone reading this that in no way, shape, or form did the Founding Fathers intend for the rule of law to hinge on one SCOTUS appointment — I also can’t live in the land of make-believe.
As the great prophet Bill Belicheck likes to say, “It is what it is.” While the courts shouldn’t (and don’t really) have this much power, we sadly behave as if they do.
So now is a time to take a trip to the way-back machine. This is from Nov. 10, 2003:
A battle between two Christian conservative heroes is shaping up in Alabama. On Nov.10, attorney general Bill Pryor (R) asked the Alabama Court of the Judiciary to remove the state’s Chief Justice Roy Moore from office. Moore, long an outspoken advocate for displaying the Ten Commandments on government property, is facing a trial before the court. He was suspended earlier this year by the state’s judicial ethics board after he openly defied a federal court order to remove a massive monument to the Ten Commandments from a state building. At the time Pryor announced his intention to cooperate with federal authorities to remove the monument even though he had earlier defended Moore’ position that the display is Constitutional.
Why do I bring up this story? Because the same Bill Pryor mentioned here is also being prominently mentioned as a potential candidate to replace Scalia.
We have to do better than the guy who stabbed Judge Roy Moore in the back for daring to stand up and defend the rule of law.
No, this is not the Scalia replacement you’re looking for.
Anyone willing to use his power as attorney general — under a Republican administration — to undermine the source of our rule of law cannot be trusted to defend the rule of law on the nation’s highest court. We already have enough justices on the court who believe the law evolves according to the whims and desires of mere mortals, thank you very much.
Again, we’re looking for originalists, not legal positivists. The former recognizes “the Laws of Nature and Nature’s God” as the original source for our laws. The latter thinks the law is changed and even originates from every stroke of a judge’s pen. If you wanted that, you would’ve voted for Hillary.
Pryor is not a Scalia for a Scalia. At best he’s a Roberts for a Scalia, and that’s a loss. We have to do better than that. We have to do better than the guy who stabbed Judge Roy Moore in the back for daring to stand up and defend the rule of law. Because what is the original rule of all law in our form of government?
The Ten Commandments.
We need someone who won’t bow to the political winds like Pryor did because President George W. Bush wanted no part of such a vitally important fight. Or like Roberts did concerning Obamacare not once but twice.
Lyndon Johnson was correct when he said, “Power is where power goes.” And those nine black-robed Supreme Court justices have real power. That power must be used accordingly. So repeat after me: there can be no calculated risks in the replacement of Scalia. We need to be as certain of this person’s convictions as we are of gravity.
And when Trump is only assuming the presidency because he won the four states that put him over the top by 1.4 points or less apiece, that means all of you who plugged your noses November 8 for decisions like this are owed bigly. He would not be moving from Trump Tower to 1600 Pennsylvania Avenue without each and every one of you. And if he can settle a few Trump University lawsuits he considered to be frivolous to preserve his presidency, you better believe he must deliver for you here.
If Trump won’t give us a Scalia for a Scalia now, when he’s on a honeymoon with the American people and has ample political capital to spend, what makes you think he’ll fight to replace a Kennedy or Ruth Bader Ginsburg (both of whom are over 80 years-old) with a conservative later on when that fight promises to be much tougher?
This is why this is the most important early decision of the Trump presidency. It will set a tone in telling us whether Trump will keep his most important promises or not.