Clinton views SCOTUS as a tool for her agenda — not for law and justice
Supreme Court justices take an oath to “faithfully and impartially” discharge the duties of their office. Which presidential candidate will nominate justices who take that oath seriously? Moderator Chris Wallace tried to get to the bottom of that question this week in the third and final debate of this presidential election cycle.
He started by asking the candidates for their views about the role of the Supreme Court and the Constitution. Hillary ClintonHillary Diane Rodham ClintonWhite House accuses Biden of pushing ‘conspiracy theories’ with Trump election claim Biden courts younger voters — who have been a weakness Trayvon Martin’s mother Sybrina Fulton qualifies to run for county commissioner in Florida MORE’s answer was chilling. She responded that the central issue for the Supreme Court is about “what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have?”
She spent the rest of her answer explaining how she wants the court to rule on particular issues ranging from abortion to free speech, declaring that “(t)he Supreme Court should represent all of us.”
Hillary Clinton: We need a Supreme Court that will “say no to Citizens United” #Debate https://t.co/BfSIYEjfMZ https://t.co/cIZ7ZeopAL
— Anderson Cooper 360° (@AC360) October 20, 2016
Clinton is flat wrong. It’s not the Supreme Court’s job to decide the “kind of country” we live in. Under the Constitution, it’s Congress and the president, not the court, that “represent all of us.”
Legal rights like the right to bear arms are not conferred by the political ideology of a Supreme Court voting bloc, but rather recognized by the Constitution itself or created by congressional legislation. The rest is up to the people acting through the political branches or the states. Simply put, it’s not the court’s job to decide every political issue.
Clinton’s confusion on this point goes deep. In the last debate, she rattled off a laundry list of “litmus tests” that she would use to bend the Supreme Court to achieve a series of left-wing policy priorities ranging from pro-abortion absolutism to censoring political speech.
But treating the Supreme Court as a rubber stamp for a policy agenda, rather than as a neutral interpreter of the Constitution, smacks of legislation through judicial fiat, not impartial judging. Indeed, even the liberal Washington Post chastised Clinton, declaring that her attitude “should not be accepted as normal.”
“Selecting judges,” the Post explained, “is not just policymaking through other means — or, at least, it should not be.” Exactly right.
Donald TrumpDonald John TrumpSenate advances public lands bill in late-night vote Warren, Democrats urge Trump to back down from veto threat over changing Confederate-named bases Esper orders ‘After Action Review’ of National Guard’s role in protests MORE’s answers were very different. “I don’t think,” Trump said, “we should have justices appointed that decide what they want to hear. It’s all about the Constitution of — of — and so important, the Constitution the way it was meant to be.”
He reiterated his previous promises to nominate Supreme Court justices who will put the Constitution first and “will interpret the Constitution the way the founders wanted it interpreted.” Trump also highlighted the list of more than twenty well-regarded lawyers from whom he promised to choose his nominees for the Supreme Court.
Donald Trump will release an expanded list of potential SCOTUS picks later today, @chucktodd reports—here are the new additions: pic.twitter.com/P7TdYwUYSb
— Alexandra Jaffe (@ajjaffe) September 23, 2016
Trump wins this point. We need judges — and Supreme Court justices in particular — who will interpret the Constitution and other laws according to their original meaning instead of their own views.
The Constitution, not a judge’s policy preferences, is the standard by which he or she should refuse to let the out-of-control executive branch rewrite the laws, strike down unconstitutional legislation, and uphold lawful actions.
Judges who take seriously their responsibility to interpret the Constitution faithfully will resist the urge to usurp the political branches’ roles in policymaking, while at the same time keeping a watchful eye on the reach of federal power. All of these attributes are essential for judges in our constitutional republic.
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Avg SCOTUS retirement age: 78.7
As of Election Day
—Ruth Bader Ginsburg will be 83
—Anthony Kennedy will be 80
—Stephen Breyer will be 78
— Sahil Kapur (@sahilkapur) October 20, 2016
The next president may appoint as many as three justices to the Supreme Court. If the last eight years are any indication, the next president will try to expand presidential power even beyond what the previous presidents have sought.
Do we want a president who will nominate Supreme Court justices to look the other way and rubber-stamp the president’s agenda? Or do we want a president who will nominate justices who faithfully interpret and apply the Constitution?
Severino, a former law clerk for U.S. Supreme Court Justice Clarence Thomas, is chief counsel of the Judicial Crisis Network.
The views expressed by contributors are their own and not the views of The Hill.