4 Questions Trump MUST Ask His Potential SCOTUS Nominees

Since the election, the country has been waiting with bated breath at who President-elect Donald Trump will nominate to fill Justice Antonin Scalia’s vacant Supreme Court seat.

Recent Marist polling found that 80 percent of Americans believe that appointing originalists to the highest bench in the land was either an “immediate” or “important” priority. Now, short lists are circulating and the Trump transition team is reportedly holding meetings with potential nominees.

While during the election it seemed that the only requirements to fill the seat was a two-box checklist (“Pro-life” and politically conservative), when an entire branch of government has gotten so far away from its original purpose, it requires a bit more than that.

Here’s what Trump’s team (and eventually the Senate) ought to be asking candidates:

1. What are rights, and what does the Constitution have to do with them?

One of the most visible consequences of the judicial oligarchy is a never-ending regime of ever-changing rights. Rather than being fundamental, transcendent, and bound up with our human dignity, “rights” are now construed to mean whatever the state wants them to mean.

Of course, one of the most egregious historic examples of this is Justice Anthony Kennedy’s infamous line that everyone has the “right to define the universe” as they see fit in Planned Parenthood v. Casey in 1992. But this sort of thinking has promulgated across the spectrum, from immigration to voting laws.

A solid justice would be quick to respond that rights cannot be created by Congress or willed into existence by an activist judge, but preexist any form of government and are best protected by the federal system envisioned in the Constitution.

2. What does the 14th Amendment really do?

The 14th Amendment was originally written with the intent of undoing the legal atrocities of chattel slavery. Since then, its provisions have been used as a blanket justification to codify a never-ending list of positive rights into the body of constitutional case law. This modern understanding of the amendment has not only been used to create “rights” to abortion and same-sex marriage, but has also been used by leftist judges to arbitrarily manufacture “rights” to early voting, transgender bathrooms, and a host of other issues.

This has, in turn, created a legal regime where the imaginary rights begin to devour the fundamental negative ones that are actually referenced in the Constitution – as has been the case of conscience rights under the Obama administration.

So where does it stop? Does the 14th Amendment give the judiciary license to create a never-ending catalogue of imaginary rights? Or is its scope far more limited?

3. Does the Supreme Court create “settled law”? Is it the final arbiter?

What the founders envisioned as the weakest branch of government has now become a place where political discourse goes to die. Antonin Scalia pointed out as much in the Obergefell decision months before his death. Is Obergefell v. Hodges truly “settled law”?

Is any watershed ruling? Or was the concept of judicial supremacy something contrived in the 20th century and since been used to pull issues out of public debate and put them squarely at the control of the legal profession?

A solid Supreme Court candidate would articulate that the founders never granted the court with anything close to the current power that it enjoys, and never intended for it to have the power to “settle” issues of public debate.

Candidates might also add that the founders explicitly rejected a judiciary council of review to do this. And as Daniel Horowitz has pointed out at CR, even the oft-cited Marbury v. Madison decision never granted the Supreme Court the final say on political questions. The court, along with Congress, the president, and the states each had their own responsibilities of interpretation.

4. What is the Supreme Court’s role?

This is an area ripe for review. If the court isn’t meant to act as a super legislature – as it has been doing for the past few decades – then what is it meant to do? The best answer for this would be to rule on issues of statute – along with its areas of original jurisdiction – while sharing the role of constitutional interpretation along with the other branches and the states.

However, the pithiest answer might be, “Whatever the Constitution and the Congress allow it to rule on, and nothing more.”

As pundits, politicians, and journalists over the next few weeks take to deriding and extolling various portions of judicial records for Trump’s short list, these questions will fall by the wayside in favor of media postmortems on how they’ll affect political questions from the bench.

As we have explained repeatedly here at Conservative Review, the problems facing our court system can’t be fixed by simply putting political conservatives (read: “good” judges) on the bench and hoping the problem rules itself away. Decades of Republican appointees have proven this. The kind of constitutional bona fides necessary to fill Scalia’s seat are going to have to be proven by the answers to the above questions.

These questions don’t nearly encompass the breadth of what should be asked of a worthy potential jurist the American people want to see Justice Scalia succeeded by someone who understands our constituting document as written, they ought to be first on the list. (For more from the author of “4 Questions Trump MUST Ask His Potential SCOTUS Nominees” please click HERE)

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