How Conservatives Can Finally Get Judicial Nominations Right

The current Supreme Court term is not quite over yet, but conservatives have already suffered notable defeats in cases involving Big Tech censorship and free speech, states’ lawful ability to proscribe abortion, the ubiquity of the abortion pill (mifepristone), the constitutionality of the Consumer Financial Protection Bureau, the possibility of a future wealth tax, and taxpayer responsibility for Indian tribal health care. One might argue—though I probably would not—that the term’s marquee gun case, involving firearm possession for those subject to domestic-violence restraining orders, went against conservative interests as well. It seems that more conservative losses could also be in store before the term is over.

Bear in mind this is the same Supreme Court the political left and corporate media (but I repeat myself) have decried for years now as a purported den of far-right, authoritarian, “MAGA” iniquity. Worse, they allege the court is somehow “unethical” due to Justice Clarence Thomas having a wealthy friend in real estate magnate Harlan Crow or Justice Samuel Alito’s wife flying at the family beach house the same “Appeal to Heaven” flag that was first commissioned by George Washington himself and which flew outside San Francisco City Hall for 60 years. For two years in a row, they have assailed the court’s legitimacy in a sprawling media disinformation operation.

The left thus gets the best of both worlds. Progressives are able to generate publicity and rake in fundraising dollars with their recurring temper tantrums about the court’s ostensible threat to “our democracy,” while on the other hand, they reap the rewards of a court that delivers them substantive victories far more often than either side would care to acknowledge.

As for the right, it continues to suffer the indignity of frequent defeat at the hands of perhaps the one major political or legal institution in America that it nominally controls.

Many of the right’s recent disappointments can be attributed to the wobbliness of the Trump-nominated triumvirate of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Gorsuch is the best of the bunch and issued heroic rulings during COVID-19, but he is an idiosyncratic libertarian who has proven himself unreliable on issues pertaining to sexual orientation and gender identity, immigration and due process, and Indian affairs. Kavanaugh is a prototypical Bush Republican—Karl Rove in a robe. Barrett, nominated to the court after a brief stint on the 7th Circuit and an unremarkable academic career, is timid and lacks the courage of her putative convictions.

For many years after former President George H.W. Bush made the disastrous choice to nominate the liberal David Souter to the court instead of the conservative stalwart Edith Jones, those involved in Republican judicial nominations vowed, “No more Souters.” Here are some ways the next Republican administration can give that vow some teeth.

First, do the actual research. Gorsuch’s stunning defection in the 2020 Bostock decision, for instance, in which he read sexual orientation and gender identity into Title VII, was entirely predictable based upon his prior similar ruling in a 2009 9th Circuit case called Kastl. And if there isn’t a huge body of case law because a prospective nominee hasn’t been an active judge for very long, that’s a good indication not to pick that person. Only demonstrable, proven track records can suffice.

Second and related, dive deep into a prospective nominee’s record to verify full-spectrum, across-the-board conservatism. Conservatives are sick of one-trick pony lawyers and jurists, for instance, who obsess over regulatory issues and gutting the administrative state while having little to say when it comes to the core civilizational issues affecting sovereignty, life, religion and human sexuality.

Third, it is imperative that conservatives vet nominees closely for a willingness and eagerness to overrule bad cases and correct course as aggressively as possible. The right must only consider those who take a properly constrained view of stare decisis (precedent) in constitutional interpretation, will liberally grant writs of certiorari to hear flawed lower-court cases affecting key issues, and who will not search for ways to avoid tough rulings—as the court did this week when it punted on the Big Tech censorship case of Murthy v. Missouri on standing grounds and dismissed as improvidently granted the Idaho abortion case of Moyle v. United States.

Finally, the prospective nominee’s personal life should be closely scrutinized. There is not a single more important proxy than the “spouse test.” It is no coincidence that Thomas and Alito are the two most steadfast of the current justices; their wives, Ginni and Martha-Ann, are exceptional, conservative women. Beyond the spouse test, a nominee must attend a theologically conservative house of worship; a rainbow flag-flying church or synagogue must be an automatic disqualifier.

It is past time that conservatives actually play to win at the U.S. Supreme Court.

To find out more about Josh Hammer and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.


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About Josh Hammer

Josh Hammer is senior editor-at-large of Newsweek. A popular conservative commentator, he is a research fellow with the Edmund Burke Foundation and a syndicated columnist through Creators. A frequent pundit and essayist on political, legal, and cultural issues, Hammer is a constitutional attorney by training. He is a former John Marshall Fellow with the Claremont Institute and a campus speaker through Intercollegiate Studies Institute, Young America’s Foundation, and the Federalist Society.

Photo: WASHINGTON, D.C. - APRIL 19, 2018: The U.S. Supreme Court Building in Washington, D.C., is the seat of the Supreme Court of the United States and the Judicial Branch of government. (Photo by Robert Alexander/Getty Images)

Notable Replies

  1. Beyond the spouse test, a nominee must attend a theologically conservative house of worship; a rainbow flag-flying church or synagogue must be an automatic disqualifier.

    That’s a dig at Gorsuch, who attended an extreme social justice “church” (really, a tax-exempt NGO and political organizing group) with his wife for years. The most dangerous branch deserves that label for its persistent violations of the Constitution’s express language and its determination to be “relevant”, taking on hot-button issues which are most definitely NOT in its purview (same-sex marriage!) GRRRR. Obergefell is an affront to every American who cares about and understands the meaning of federalism.

    One case conservatives must and should focus on overturning is Plyler v. Doe. It costs American citizens billions through over-taxation and illegal taxation of their homes to educate, for decades, those who deserve no consideration, having entered the country illegally. It’s an outrage and an affront to all Americans.

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