With the retirement of Supreme Court Justice Anthony Kennedy, President Donald Trump has an opportunity to help shape the future of the Court and American jurisprudence. Trump is acting swiftly, with a pick expected by July 9, less than two weeks after Kennedy announced his retirement.
While Trump’s pick is uncertain, the field isn’t exactly “wide open.” During his campaign two years ago, Trump and his advisors put together a list of potential nominees for the nation’s highest Court. He told the voters not only what type of justice he is looking for, but also named the group from whom those justices would be selected. This straightforward approach helped propel Trump to electoral victory, as he shored up his support with conservative voters who were hoping for a change in the judiciary.
This was a breath of fresh air for conservative voters. Frankly, we have seen more than our fair share of Republican nominees who were unknown commodities, or who drifted leftward once they were on the Court. Trump’s approach — naming the pool of potential nominees in advance — gave voters an opportunity to judge for themselves whether, as president, Trump would nominate the type of conservative jurists that we want. And what we are looking for is actually quite simple: Supreme Court justices who recognize that there are limitations to the Court’s role, that it is their job to interpret the law, but not to make law from the bench.
If you ask even a handful of Republican voters what kind of person they would like to see nominated, you will inevitably hear the response “Someone in the mold of Justice Antonin Scalia.” That may mean very different things to different people. It may mean a justice who is considered “pro-life” or is willing to overturn Roe v. Wade. It may mean a justice who stands up for peoples’ Second Amendment rights.
But it doesn’t always line up with what we consider the “conservative” outcome on politically-charged issues. Nor should it. Following Justice Scalia’s death, the left-leaning online magazine Slate described him as an “accidental champion” of criminal defendants’ rights, “a jurist with a deeper objective—namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution.”
Picking a Supreme Court justice (or any other judge) should not focus on specific issues. It should focus on the nominee’s judicial philosophy and interpretive methodology. If a justice has the right methodology and a core philosophical understanding of the proper but limited role of the judiciary, the individual issues and individual cases will take care of themselves. And if a justice is right on a few hot-button issues but doesn’t have a core philosophical underpinning, he or she will still be subject to the leftward drift we have so often seen in Republican nominees.
So when I say “I want a nominee in the mold of Justice Scalia,” I mean something very specific. I mean I would like a nominee who has the right philosophy. I mean someone who understands that while the Supreme Court’s power is significant, it is not without limits; someone who believes that the courts must interpret the law but not engage in policymaking by substituting their own preferences for the language enacted by Congress.
Justice Scalia’s textualist philosophy should serve as a model for any new justice. He did not strain to reach desired policy outcomes. He focused on the plain text of the statute in front of him. Where the text’s meaning was clear, there was no room for “interpretation.”
In the eyes of textualists—and, I dare say, the vast majority of non-lawyers as well—the law means what it says. Whether reading a statute or the Constitution, the justice’s role is clear. A provision should be construed reasonably, to contain all that it fairly means. But as Justice Scalia often argued, judges have no authority to pursue broader social purposes or use their decisions to effectively write new laws.
President Trump stayed true to his word when he nominated Neil Gorsuch last year. Gorsuch recognizes the importance of the separation of powers and he understands the limited role that each branch of government plays. Trump now has an opportunity to build on that success. If he once again nominates someone with the right judicial philosophy, he will shape the Court in way that conservatives can be proud of.
Larry Obhof, a Republican, is the president of the state Senate in Ohio.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
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