Make the Judiciary Great Again By Holding Senators Accountable

Following four days of hearings before the Senate Judiciary Committee in late March, the full Senate voted 53-47 last week to confirm Judge Ketanji Brown Jackson as an associate justice of the Supreme Court—fulfilling Joe Biden’s campaign pledge to name a black woman to the high court. Three Republican senators joined their Democratic colleagues in voting to confirm Jackson—Alaska’s Lisa Murkowski, Maine’s Susan Collins, and Utah’s Mitt Romney.

Imagine a slightly different scenario: a Republican president nominates someone to serve on the Supreme Court and asks a 50-50 Senate to confirm that person. You can be absolutely sure that Democrats would force the vice president to break the tie to get that nominee on the bench. Remember when, in 2016, President Trump nominated Betsy Devos to be secretary of education   and Vice President Mike Pence had to break a tie, even without an evenly split Senate?

Democrats understand politics. They wouldn’t care if the confirmation was supposedly “inevitable”—they would fight tooth and nail to stop it, as they did with Brett Kavanaugh. And if they couldn’t succeed, they certainly wouldn’t be caught dead lending that razor-thin outcome even a shred of bipartisan legitimacy.

But not Republicans. Oh, no. They’re far too genteel, far too principled, really, to engage in such loathsome hardball. 

In the post-Kavanaugh era, we need a new approach to Supreme Court nominations.

Certain Republican senators had the right idea in questioning Jackson about her rationale for imposing lenient, below-the-guidelines sentences on those convicted of possessing child pornography. They did what they could as members of the Judiciary Committee to cast doubt on Jackson’s judgment and her exercise of sentencing discretion as a federal district court judge. Regrettably, it did not derail her nomination.

But that does mean Republicans had no other options. 

As much as we like to tell ourselves that Supreme Court nomination hearings are strictly about nominees’ legal philosophy, credentials, and temperament, they’re not. That is little more than a pleasant fiction. Certainly these hearings may involve such issues, but that isn’t what they’re really about.

In truth, they’re stages upon which high-level constitutional politics play out. And we should treat them accordingly.

Everybody knows that the Supreme Court is immensely important. Some would argue (and correctly lament) that it’s currently the most important policy-making institution in the country. And because there is not broad societal agreement regarding how its members are supposed to behave, what the proper scope of their job is, or even what judging really consists in, we find ourselves squarely in the realm of politics whenever a seat opens up: arguing about, deliberating over, and persuading people of the best course of action, all with the aim of securing justice.

That is, when it comes to Supreme Court nominations, there is no “correct” answer, like there is when we’re trying to find the solution to a math equation. Instead, because the choice is political, it is inherently contentious because people disagree about the best course of action for securing justice, the common good, and human flourishing. But that definitely does not mean there are not better and worse choices. There are. The electorate certainly recognized that in 2016, when Justice Antonin Scalia’s death thrust the Supreme Court into the political spotlight, creating a vacancy that then-candidate Trump masterfully used to his advantage to win the election.

If Americans on the Right truly believe that judges are bound to interpret laws, including the Constitution itself, the way that reasonable and reasonably informed persons at the time of their enactment—i.e., founders, ratifiers, and lawmakers, as well as members of the public—would have understood those laws, then we have an obligation to fight for a judiciary that embodies that belief. This requires doing everything we can to ensure as best we can that as few people as humanly possible who disagree with that job description are granted life tenure as federal judges.

So we have to put pressure on senators not to vote to confirm lawless radicals who, shielded by their black robes and propped up by healthy societal esteem for judges, choose to legislate rather than perform their designated, and more humble, role in our constitutional system: adjudicating discrete cases and controversies according to the original meaning of the laws on the books.

Call it “Operation Millstone”—for just as it would be better “if a great millstone were fastened around your neck and you were drowned in the depth of the sea” rather than to cause a child to stumble in the faith, so too must Republican senators come to believe that it is better for them to vote against manifestly unfit judicial nominees—i.e., those who are not originalists and textualists—than for them to earn plaudits from their political opponents.

But how can we create an atmosphere where wishy-washy senators do not chase after fleeting, cynical praise?

Easy. Wespeak in a language that politicians understand: We tie their votes on these nominees to their reelection prospects.

Forming an institution capable of bringing electoral pressure to bear on senators who fail to hold the line will, of course, require funding, logistical know-how, media savvy, and good old-fashioned, day-to-day dedication. But there is no reason why it can’t be done. The message is simple enough: Stop voting for Democratic judicial appointees you know will not respect either congressional enactments or the Constitution itself. But how would it work?

Imagine that in some future case, the Supreme Court once again upholds the original understanding of the Second Amendment—that is to say it recognizes and protects the individual natural right to keep and bear arms. It is a virtual certainty that Justice Jackson, along with Justices Sonia Sotomayor and Elena Kagan, will dissent, arguing that the people do not have any such God-given right (and, by implication, that rights are granted and withdrawn at the whim of the government). The campaign ads practically write themselves.

“Justice Jackson says you don’t have a right to defend yourself. Senator X agrees. After all, he voted for her. Let’s send him packing.”

In this scenario, each senator who voted to promote Judge Jackson—Murkowski, Collins, and Romney—should, during his or her next primary race, have the millstone of her gun-hating opinion tied around their respective necks, dragging them into the sea of primaried incumbents. Every vote from the Supreme Court’s justices on hot-button questions—the ones we all know will break along partisan lines when opinions are handed down in June—needs to become a political issue for the senators who voted for those justices.

Undoubtedly this will make them think twice before voting to confirm someone they can be fairly confident will not support those things the Constitution protects (or forbids), and that their constituents favor (or oppose). What do you think will happen to Romney in deep-red, gun-loving Utah if a machine like this is up and running next year, just in time for his 2024 primary race?

Nothing he’ll enjoy, I’m sure.

Politics is the art of public prudence. At its best, it is about doing the most amount of good, or the least amount of harm, given the circumstances. Democratic judicial nominees, because they are living constitutionalists, are not good for the rule of law and thus are not good for America.

We should make sure that Republican senators get the memo.

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About Deion A. Kathawa

Deion A. Kathawa is an attorney who hails from America’s heartland. He holds a J.D. from the University of Notre Dame and a B.A. from the University of Michigan-Ann Arbor. He is a 2021 alumnus of the Claremont Institute’s John Marshall Fellowship. Subscribe to his “Sed Kontra” newsletter.

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