What to look out for on February 2.
When Donald Trump announces his nominee for the Supreme Court (on February 2, supposedly), beware of media accounts and interest groups purporting to say what the nominee’s “position” is on any number of hot-button issues.
Most of the reports and analysis will be bunk — and the bunk may well come not just from the Left and media but from the political Right as well.
Conservatives especially should be wary of claims that any one of the most likely nominees — Neil Gorsuch, William Pryor, Thomas Hardiman, Diane Sykes, or Raymond Kethledge — is somehow likely to be some sort of “squish” who will “evolve” leftward and become a John Roberts-like political maneuverer or even a David Souter-like liberal. The truth is that these five have been vetted so well by the entirely trustworthy Heritage Foundation and Federalist Society (among others) that any one of them is sure to be of at least the admirable solidity of Justice Samuel Alito.
I’ve spent the better part of a week researching many of their writings and talking to stalwart constitutionalist leaders about them. All of them are clearly textualist-originalists to a degree Chief Justice Roberts never appeared to be, even when many on the right were applauding Roberts’ 2006 nomination due to his clear sense of one sort of judicial “restraint” and generally conservative political leanings.
Sure, these judges may reach differing conclusions from each other in particular cases, but these will likely be with the infrequency and integrity of, say, the occasional differences between Justice Clarence Thomas and the late Justice Antonin Scalia. What’s important is that each one of them is clear and forthright in applying the same basic method of analyzing each case — namely, by hewing closely to the facts at hand, and carefully considering those facts in light of the exact language of the statutes and/or Constitution (whichever applies) relevant to that case.
All of them do so while clearly operating from a legal-philosophical framework/understanding very much in line with the philosophies so well explained in the seminal Federalist Papers that explained how and why our Constitution was designed as it was.
If that honest decision-making process sometimes leads to individual case results that do not comport to the policy preferences of a subset of conservatives, so be it. The real safeguard for our liberties lies in that analytical process undertaken by those well steeped in a Federalist-paper worldview. The reality is that in the vast majority of cases, the right constitutional approach will lend aid to the right policy results, because the Constitution and conservative policies both tend toward limited government, maximum liberty under straightforward law, and a respect for the realms in which traditional institutions of family and faith are honored and cherished. For every policy disappointment that might result from such an approach to constitutional jurisprudence, surely 15 or 20 policy triumphs will occur.
Hardiman: Now let’s get to specifics. Let’s start with a common characterization of one of Hardiman’s judicial opinions, namely that (quoting Newsweek) “in 2010, Hardiman favored a ruling that said there was no clearly established First Amendment right to videotape police officers at traffic stops.”
Gee, it sounds like Hardiman was saying that people should have no right to videotape their own traffic stops in order to prove they are being mistreated. But that’s not what was at issue. Instead, he was trying to decide if a cop could be sued personally for arresting someone for such videotaping, because the cop supposedly should have known that the First Amendment automatically protected such videotaping, even in the face of a local statute outlawing it.
In fact, the officer not only was acting to enforce a local law, but he took the time to call an assistant district attorney in order to make sure he was applying the law accurately.
The lawsuit against him alleged that the First Amendment is so clear that the officer should have known that the local law was illegitimate. Hardiman’s decision, citing ample precedent, was that the First Amendment’s protections, in such circumstances, were not so clear that the cop’s “qualified immunity” from a personal lawsuit should be waived.
If the arrestee had wanted to protest the law itself under First Amendment grounds, that would have been one thing. Instead, he sued the cop — a case that would have required a “reasonably competent officer” to exercise the knowledge of a highly trained constitutional lawyer, deciding for himself that a local law should not be enforced, even in the face of advice from the DA’s office to the contrary.
Surely such a decision does not make Hardiman a despoiler of the First Amendment.
Sykes, meanwhile, has frequently suffered from an even worse misrepresentation, namely that she has shown hostility against homosexual people. As NBC News described it last May, “Sykes sided with a Christian group at a public university that prohibited LGBT members.” Well, no. She sided with a Christian group that allowed any student to attend its meetings, but that reserved “membership” and “officer” status for students who do not engage in extramarital sex. Note: All students, not just homosexuals, are covered by this policy. Whether gay or straight, all students who have sex “outside of a traditional marriage are not invited to become CLS members unless they repent the conduct and affirm the statement of faith.”
Surely it is reasonable, and indicative of no inherent bias against homosexuals, to decide that a Christian group that treats straight sex the same way it treats gay sex is not “discriminating” against the latter. This is especially so when one notes that the Christian group in question explicitly affirmed that a person “who has homosexual inclinations but does not engage in or affirm homosexual conduct, would not be prevented from serving as an officer or member.”
Where, pray tell, is the invidious discrimination in that rule?
As for Pryor, he has come under ridiculous assault from both left and right. The organized Left for 14 years, for example, has been repeating Sen. Chuck Schumer’s absurdity, from a 2003 nomination hearing, that Pryor “has equated gay sex with prostitution, adultery, necrophilia, bestiality, possession of child pornography, incest and pedophilia.” Of course Pryor did no such thing. Instead, he argued, as Alabama’s attorney general, that the legal argument in a particular gay-rights case was so broad that it would logically also apply to those other depravities, so that no state could outlaw them without running afoul of the Constitution. He therefore rejected the argument.
Just 15 days after Schumer excoriated Pryor for making this rather obvious point, Justice Scalia wrote (in dissent) from the Supreme Court’s decision in the same case that “state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise… called into question” by the decision to the contrary of his and Pryor’s assessment. In other words, Pryor’s legal logic — not a moral equation — was not only unremarkable or extreme, but was exactly the same as that of the brilliant Scalia.
In fact, even the uber-liberal Justice Ruth Bader Ginsburg has argued that the same “zone of privacy” arguments adopted by the court majority in that gay rights case should also be used to declare unconstitutional laws against prostitution and bigamy.
Likewise, numerous centrist and liberal outlets have charged that Pryor’s position in the same case meant that he is “in favor of criminalizing gay sex.” Nope: Pryor was evincing no personal political opinion at all, but instead was arguing in exact concomitance with what was then the existing Supreme Court precedent on such state laws, namely Bowers v. Hardwick. A state attorney general arguing that existing precedent should be followed is hardly a frothing radical.
These absurd charges from the Left are being bandied about even as right-wingers use another Pryor case to allege that he is a “gay special rights stooge.” So the guy who wants to criminalize gays also is their stooge? Go figure.
Then there’s Gorsuch, who even though he is often described as the most Scalia-like judge on Trump’s long list of potential nominees, is under repeated, aggressive attack from conservative scion Andy Schlafly for supposedly being a fellow-traveler with radical abortionists. The charge, of course, is nonsensical, as has been amply demonstrated by both Ed Whelan and Jonathan Adler at National Review Online.
The examples of misrepresentation could go on much longer. The point is this: Readers should pay no heed, none at all, to any news report or analysis that says Trump’s nominee “favors” or “opposes” this or that group, cause, constitutional right, or policy.
Not only does a good constitutional-conservative judge refuse to let his policy preferences or personal feelings determine the outcome of a case, but he also will sometimes be obliged — as a judge below the Supreme Court — to rule against his own constitutional interpretation if clearly established Supreme Court precedent says otherwise. A judge constrained by such precedent at the appeals-court level may well come down on the exact opposite “side” of the same exact case if he sits on the Supreme Court — where, if he thinks precedent clearly transgresses the Constitution, he is free to overturn precedent in favor of the correct constitutional reading.
All of which returns us to the point that began this column: What matters at the level at which all these potential nominees have been judging is not the result in any particular case, but the rigor and consistency of the analytic approach rooted in first principles of the Constitution and of statutory construction.
One or two of the five apparent finalists might make more conservatives happier than one or two others. But all five are brilliant, principled, solid, constitutional conservatives, much more likely to remain textualist-originalists than John Roberts ever was. (Even when Roberts was nominated to general acceptance on the right, most of the same conservative legal leaders who were pronouncing themselves relieved that President Bush had chosen him rather than Alberto Gonzales were also admitting that Roberts was a bit of a cipher.)
Just because Republican presidents have fallen short in past Supreme Court nominations doesn’t mean that all Republican nominees are inherently suspect.
The leaders of the Federalist Society and the Heritage Foundation haven’t just acquiesced to the names on Trump’s short list; they created the list and did all the vetting. In Pryor, Sykes, Gorsuch, Hardiman and Kethledge, they (and Trump) have identified the true cream of the crop. It’s time for conservatives to stop carping, and start rallying.
Quin Hillyer is a Senior Editor of The American Spectator. Follow him @QuinHillyer.