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A Closer Look at Neil Gorsuch, an Excellent Choice for the Supreme Court

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Tuesday night, President Donald Trump announced his nomination for the Supreme Court vacancy left by the unexpected death of Justice Antonin Scalia last February.

Trump nominated Judge Neil M. Gorsuch of the U.S. Court of Appeals for the 10th Circuit. With this nomination, Trump held to the promise he made on the campaign trail to select a nominee from a list of 21 individuals.

Gorsuch is an eminently qualified and well-respected judge with a record that demonstrates he cares about religious liberty, the separation of powers, and the original public meaning of the Constitution and the laws he interprets. He would be a fine successor to Scalia.

Now, the confirmation process begins for Gorsuch. It can be a harrowing process for a nominee and his family as senators, the media, and others dig into his past—particularly looking for scandals and juicy details that might derail the nomination.

Let’s take a closer look at Gorsuch.

Background

Born in 1967, Gorsuch sits on the Denver-based 10th Circuit Court of Appeals, which has jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. He received his bachelor’s degree from Columbia University, his law degree from Harvard University, and his doctorate of philosophy from Oxford University.

(Read about Neil Gosuch’s personal religious background HERE)

But Gorsuch is not the only credentialed member of his family. His mother, Anne Gorsuch Burford, served as the first female head of the Environmental Protection Agency, under President Ronald Reagan.

After serving as a law clerk to Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit and Justices Byron White and Anthony Kennedy of the U.S. Supreme Court, Gorsuch joined a prominent D.C. law firm, where he practiced for 10 years.

He then served as principal deputy to the associate attorney general and as acting associate attorney general (the third-highest position) at the U.S. Department of Justice.

In May 2006, President George W. Bush nominated and the Senate confirmed Gorsuch to the 10th Circuit by a voice vote just two months later. His former boss, Kennedy, administered the oath of office.

Before joining the bench, Gorsuch authored “The Future of Assisted Suicide and Euthanasia” (2006), a book that, as Princeton University Press described it, “builds a nuanced, novel, and powerful moral and legal argument against legalization [of assisted suicide and euthanasia], one based on a principle that, surprisingly, has largely been overlooked in the debate—the idea that human life is intrinsically valuable and that intentional killing is always wrong.”

After joining the bench, he co-authored “The Law of Judicial Precedent” (2016) with the highly-respected legal writer Bryan Garner (who co-authored several books with Scalia) and 11 other federal appellate judges.

Gorsuch has also critiqued the left’s increasing preference to resort to the courts instead of the political process to advance its policy goals. In a 2005 op-ed, he wrote:

American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary … As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.

Gorsuch has criticized the judicial confirmation process and decried treating would-be judges as “little more than politicians with robes.”

Approach to Judging

During the campaign, Trump pledged to nominate an individual who was “very much in the mold of” Scalia.

One recent study singled out Gorsuch as one of the top judges whose approach to interpreting the law was closest to that of Scalia’s approach. Gorsuch ranked second out of 15 judges in “Scalia-ness,” surpassed only by Utah Supreme Court Justice Thomas Lee.

When it comes to interpreting statutes and the Constitution, a Supreme Court justice must keep uppermost in mind that he did not write the text and should not attempt to rewrite that text through creative “interpretation” to mean something quite different from what was intended by its drafters, but which the justice personally considers more fair, wise, or just.

In other words, a justice should interpret the text and structure of a statute, or the Constitution, based on the original public meaning of that text at the time it was adopted, and should not, under the guise of statutory or constitutional interpretation, impose on the rest of society his own policy preferences based on his perceptions of contemporary values.

Gorsuch gives every indication that he will be just such a justice if he is confirmed by the Senate. He has demonstrated that he understands the proper, limited scope of the judicial power.

During his 10th Circuit confirmation hearing he stated, “The independence of the judiciary depends upon people in both parties being willing to serve, good people being willing to serve who are capable and willing to put aside their personal politics and preferences to decide cases and to follow the law and not try and make it.”

He has since written,

… donning a robe doesn’t make me any smarter. But the robe does mean something … It serves as a reminder of what’s expected of us—what [Edmund] Burke called the ‘cold neutrality of an impartial judge.’ It serves, too, as a reminder of the relatively modest station we’re meant to occupy in a democratic society. In other places, judges wear scarlet and ermine. Here, we’re told to buy our own plain black robes.

In a concurring opinion in 2016, Gorsuch wrote that the Constitution “isn’t some inkblot on which litigants may project their hopes and dreams … but a carefully drafted text judges are charged with applying according to its original public meaning.”

Gorsuch leaves his personal views at home. During his confirmation hearing, Sen. Lindsey Graham, R-S.C., questioned Gorsuch about how his views on assisted suicide and euthanasia would affect his judging.

Each case, Gorsuch said, deserves the “complete attention of the judge without being diverted by personal politics, policy preferences, or what you ate for breakfast.” He later added that he would “follow the law as written and not replace it with [his] own preferences, or anyone else’s.”

In a tribute to Scalia, Gorsuch wrote that “legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future,” but that “judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

He quoted Scalia, saying:

If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.

He also wrote that he was “an adherent to the view that outcomes (ends) do not justify methods (means).”

Notable Opinions

Gorsuch has written several notable opinions, some of which are described below, that are likely to be scrutinized during his confirmation hearing.

Gutierrez-Brizuela v. Lynch

Courts will typically defer to an administrative agency’s interpretation of an ambiguous statute if that interpretation is reasonable. Known as “Chevron deference,” this practice is controversial and often criticized by conservatives.

In 2016, Gorsuch authored a separate concurring opinion, explicitly calling Chevron deference into question. He wrote, “ … the fact is Chevron … permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

He added, “[m]aybe the time has come to face the behemoth.”

United States v. Ackerman (2016)

When an AOL filter identified what appeared to be child pornography in Walter Ackerman’s email, it forwarded the email to the National Center for Missing and Exploited Children (NCMEC) (a quasi-governmental body), which then completed an investigation and notified the police.

After being indicted by a federal grand jury for possessing and distributing child pornography, Ackerman filed suit, claiming NCMEC violated the Fourth Amendment when it searched his emails without a warrant.

Writing for the majority, Gorsuch determined that the Fourth Amendment applied to NCMEC since its “law enforcement powers extend well beyond those enjoyed by private citizens” and that NCMEC conducted a “search” within the meaning of the Fourth Amendment. The case was remanded for the district court to determine whether the search was nevertheless reasonable.

United States v. Carloss

In this 2016 case, the 10th Circuit held that police did not violate Ralph Carloss’ Fourth Amendment right to be free from unreasonable search and seizure when they walked onto his property to knock on the front door, even though there were four plainly visible “No Trespassing” signs.

Gorsuch dissented, writing that the signs revoked the officers’ implied license to walk onto the property and knock on the front door. He emphasized that under the majority’s bold view, “[a] homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn’t enough to revoke the state’s right to enter.”

Hobby Lobby v. Burwell

Gorsuch joined the en banc opinion in this 2013 case challenging the regulation issued pursuant to Obamacare that would force employers to pay for contraception and abortifacients as part of their employee health insurance plans—even if they had a religious objection.

The government argued that there were too many steps between the employer paying for coverage and the employee’s decision to use contraception for an employer’s free exercise of religion to be substantially burdened.

The court rejected this argument. Gorsuch concurred in the decision holding that Hobby Lobby was likely to succeed on the merits of its claim. He wrote that “it is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes ‘too much’ moral disapproval on those only ‘indirectly’ assisting wrongful conduct.”

Gorsuch also joined 11 other judges in dissent when the full 10th Circuit refused to rehear Little Sisters of the Poor v. Burwell, a similar case involving religious nonprofits. The Supreme Court heard the case last term and in an unusual opinion, agreed that the government could not force employers, such as the Little Sisters of the Poor, to violate their faith.

The consolidated cases were remanded for the lower courts to reconsider the claims brought by the Little Sisters of the Poor and others that the regulations violate their religious exercise in light of the government’s admission that it could indeed provide contraceptive coverage without the Little Sisters’ collaboration.

Also in the religious liberty context, Gorsuch joined a dissent from denial of rehearing en banc in Summum v. Pleasant Grove City, a case involving whether a city could put up a privately donated Ten Commandments monument in a city park to the exclusion of another proposed monument.

The Supreme Court ultimately reversed the 10th Circuit in an opinion by Justice Samuel Alito, relying in part on the dissent. Gorsuch has also dissented from denial of rehearing en banc in two other cases, criticizing the Supreme Court’s confused Establishment Clause jurisprudence.

Planned Parenthood Association of Utah v. Herbert

After national news broke alleging Planned Parenthood harvested and illegally sold the body parts of aborted babies, Utah Gov. Gary Herbert directed state agencies to stop the flow of federal funds to Planned Parenthood in Utah.

In 2016, the 10th Circuit granted Planned Parenthood’s request for a preliminary injunction and ordered the governor to fund Planned Parenthood.

When the 10th Circuit refused to hear the case en banc, Gorsuch dissented, criticizing the panel for applying the wrong standard of review and for relaxing Planned Parenthood’s burden of proof.

The Coming Fight

Gorsuch has a record that demonstrates his fidelity to the Constitution and a proper understanding of the role of courts.

In his announcement this evening, Trump noted that Gorsuch has “outstanding legal skills, a brilliant mind, tremendous discipline, and he’s earned bipartisan support.” Gorsuch is “a man who our country needs badly to ensure the rule of law.”

While Senate Minority Leader Charles Schumer and other Senate Democrats have already announced their intention to try to filibuster any nominee, it will be a hard case for them to make given Gorsuch’s impressive record and clear commitment to the Constitution and the rule of law. (For more from the author of “A Closer Look at Neil Gorsuch, an Excellent Choice for the Supreme Court” please click HERE)

Follow Joe Miller on Twitter HERE and Facebook HERE.

A Few Facts About SCOTUS Pick Neil Gorsuch’s Religion

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Judge Neil Gorsuch has been nominated to fill Antonin Scalia’s seat on the Supreme Court. Here are a few facts about his religious history and commitments, including positions important to religious conservatives.

1) Neil Gorsuch attended a Catholic school, the exclusive Georgetown Preparatory School, while his mother Anne served as head of the EPA under President Reagan. The school is run by the Jesuit order. He was student body president his senior year and graduated in 1985. The school makes a point of noting that it was founded the same year as the Supreme Court was established.

He studied at Oxford under the Catholic philosopher John Finnis. Finnis is one of the world’s leading Natural Law thinkers. One of Finnis’s other students, Princeton professor Robert P. George, wrote on his Facebook page that “Judge Gorsuch, whom I know well, is a faithful constitutionalist and extraordinarily well-qualified. President Trump could not have done better. Kudos to him.” Before the nomination, George had written, “He would be a superb Supreme Court justice. He is intellectually extremely gifted and is deeply committed to the (actual) Constitution and the rule of law. He will not manufacture ‘rights’ or read things into the Constitution that aren’t there or read things out of the Constitution that are.”

2) He’ll be the only Protestant on the court. He now attends St. John’s Episcopal Church in Boulder City, Colorado, where his daughters served as acolytes. The church describes itself as “an inclusive, Christ-centered community reaching out to all who are seeking a deeper spirituality and relationship with God and one another.” It has a woman pastor.

3) He opposes the legalization of euthanasia, as he wrote in his book The Future of Assisted Suicide and Euthanasia. Princeton University Press published the book in 2009. Two of the nation’s leading Catholic bioethicists, Princeton’s Robert P. George and Georgetown’s John Keown, praised it.

However, as the Southern Baptist’s Ethics and Religious Liberty Commission noted, “during his confirmation hearing [for the Tenth Circuit] he said he would follow the law rather than personal convictions, and that in his writings he has largely defended existing precedent in these areas.” As one constitutional scholar described Gorsuch’s views:

[He] believes that “any State’s decision to legalize assisted suicide would likely bring with it both benefits and some attendant costs, and, accordingly, the legalization question presents a difficult moral and legal choice.” … In his book, Gorsuch elaborates on these ideas, proposing as a guiding principle the intrinsic value of human life and arguing that “to act intentionally against life is to suggest that its value rests only on its transient instrumental usefulness for other ends.” He suggests a standard that would leave room for patient autonomy while not allowing intentional killing.

4) Gorsuch is taken to be an opponent of abortion, though he’s never written a court decision on the matter. He wrote in his book that “All human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” Also, “To act intentionally against life is to suggest that its value rests only on its transient instrumental usefulness for other ends.” And also:

It is simply not acceptable when we are deciding who is and is not treated as fully human…. It is incompatible with the promise of equal justice under law that any of us should feel at liberty to sit in judgement to decide who is and who is not entitled to the benefits of that promise.

In a footnote to the book, he argued that “Abortion would be ruled out by the inviolability-of-life principle I intend to set forth.” He noted that this depended on another belief. It would be true “if, and only if, a fetus is considered a human life. The Supreme Court in Roe v. Wade, however, unequivocally held that a fetus is not a ‘person’ for purposes of constitutional law.” Observers believe he would find that the fetus is a person.

His one judicial encounter with the issue came in Planned Parenthood of Utah v. Herbert. “Last October,” writes constitutional expert Ed Whelan of the Ethics and Public Policy Center, Gorsuch “dissented strenuously” when the court left standing a order keeping funds going to Planned Parenthood and over-rode the governor’s directive. “Gorsuch faulted the panel for failing to accord the appropriate degree of deference to the district court’s factual findings and for making its own bizarre inferences about the governor’s reasons for acting.”

A negative testimony to his position is NARAL’s reaction. The formerly named National Abortion Rights Action League tweeted, “We will fight hard, we will fight back, and we will #RESIST Neil Gorsuch & Trump’s extreme #antichoice agenda! #StopGorsuch”.

5) He’s an advocate of religious freedom and tolerance. He wrote in his book that “The law … doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

Gorsuch has “an especially strong record” on this subject, writes Whelan. In 2013, Gorsuch supported Hobby Lobby against the Obamacare mandate to provide conception, a decision upheld by the Supreme Court. Two years later, he supported the Little Sisters of the Poor, an organization of Catholic nuns, against similar requirements.

He “has also written or joined opinions — again, largely vindicated by the Supreme Court — that have criticized doctrines that limit religious expression in public spaces,” writes another legal scholar, Eric Citron, on the SCOTUSblog.

The common thread in these cases is one that matters very deeply to conservatives: a sense that the government can permit public displays of religion – and can accommodate deeply held religious views – without either violating the religion clauses of the Constitution or destroying the effectiveness of government programs that occasionally run into religious objections. In his 2009 concurrence in Pleasant Grove City, Utah v. Summum, Scalia articulated very similar views.

6) Gorsuch is intellectually independent. He’s willing “to rethink constitutional principles from the ground up,” says Jeffrey Rosen of the National Constitution Center, quoted by Politico. “Like Justice Scalia, he sometimes reaches results that favor liberals when he thinks the history or text of the Constitution or the law require it, especially in areas like criminal law or the rights of religious minorities, but unlike Scalia he’s less willing to defer to regulations and might be more willing to second-guess Trump’s regulatory decision.”

7) He loves his wife Louise and two daughters, Emma and Belinda. He dedicated his book to them with the words “Finally, and borrowing in part from P.G. Wodehouse, I thank my wife, Louise, and my daughters, Emma and Belinda, without whose constant love and attention this book would’ve been finished in half the time — but without whom life wouldn’t been half as fully lived.” (For more from the author of “A Few Facts About SCOTUS Pick Neil Gorsuch’s Religion” please click HERE)

Follow Joe Miller on Twitter HERE and Facebook HERE.

Trump Likely to Name 1 of These 2 Judges to Supreme Court

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President Donald Trump returns to prime time Tuesday for the biggest announcement of his presidency so far. He will reveal at 8 p.m. EST his pick for the Supreme Court, widely reported to be one of two federal appeals court judges—Neil Gorsuch or Thomas Hardiman.

Some reports suggest two other appeals court judges, William Pryor and Diane Sykes, still could be in contention.

However, neither of those judges won unanimous confirmation to their current posts. The Senate confirmed Gorsuch by a voice vote in July 2006 and confirmed Hardiman 95-0 in March 2007.

170130_GorsuchHardiman

Unanimous confirmation for past judgeships, however, isn’t likely to prevent Senate Minority Leader Charles Schumer, D-N.Y., from trying to block the nominee, said Carrie Severino, chief counsel for the Judicial Crisis Network.

“It will be hard to say the nominee is out of the mainstream if Schumer has already voted for him,” Severino told The Daily Signal. “But Trump could renominate Merrick Garland and the Democrats would reflexively block it.”

Some Democrats already have threatened to filibuster Trump’s nominee, whoever he or she is.

President Barack Obama nominated Garland, chief judge of the Circuit Court of Appeals for the District of Columbia, to fill the vacancy left after the Feb. 13 death of Justice Antonin Scalia. Senate Republicans refused to advance the nomination in an election year.

It’s not likely Trump will have a high court nominee approved by April, when the Supreme Court probably will hear its last set of cases for the year, said Curt Levey, president of the Committee for Justice.

“With [Supreme Court Justices] Sonia Sotomayor and Elena Kagan, it took about three months,” Levey told The Daily Signal. “I supported stopping the Garland nomination, but the one thing Republicans can’t do is hurry this, or act as if filling the vacancy is urgent. I don’t think the Democrats can filibuster, but they will have to play to their base’s anger over Garland.”

Gorsuch ultimately has a more in-depth history of writing with regard to constitutional rights, separation of powers, and the role of judges, said John Malcolm, director of the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.

“It will still be a fight, but not be as much of a knock-down, drag-out fight as if [Trump] had chosen Bill Pryor,” Malcolm told The Daily Signal. “Both would be superb Supreme Court justices, and I hope either gets confirmed.”

Here’s a look at the record of Trump’s potential nominees:

Backgrounds

Gorsuch, 49, was appointed by President George W. Bush as a judge on the Court of Appeals for the 10th Circuit in Colorado.

Before that, Gorsuch was a deputy assistant attorney general at the Justice Department. The Harvard Law School graduate clerked for both current Supreme Court Justice Anthony Kennedy and former Justice Byron White.

Bush appointed Hardiman to the Court of Appeals for the 3rd Circuit in Pennsylvania. That’s the same court that Trump’s sister, Judge Maryanne Trump Barry, serves on.

Hardiman, 51, previously was a federal district judge for the Western District of Pennsylvania, a position confirmed by a voice vote of the Senate in October 2003. He received his law degree at Georgetown University.

On Gun Ownership

A Judicial Crisis Network brief noted Gorsuch’s decision in the case of United States v. Games-Perez, where the appeals judge wrote that “there is a long tradition of widespread gun ownership by private individuals in this country.” He added: “The Supreme Court has held the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly.”

For his part, Hardiman rejected a challenge to a law barring felons from owning firearms.

But Hardiman generally has been strong on the Second Amendment.

In the case of Drake v. Filko, Hardiman wrote the dissenting opinion in a ruling upholding a New Jersey law requiring residents have a “justifiable need” to obtain a permit to carry a gun. Citing Supreme Court decisions upholding the Second Amendment, he wrote: “States may not seek to reduce the danger by curtailing the right itself.”

On Religious Freedom

Gorsuch ruled in two major religious liberty cases that came before the 10th Circuit challenging the Obamacare mandate that employers pay for birth control and abortion-inducing drugs for employees, siding with Hobby Lobby and the Little Sisters of the Poor in the two cases.

In a lower-profile case, Yellowbear v. Lampert, Gorsuch ruled in favor of an inmate who said prison officials denied his religious freedom by not accommodating his Native American faith.

In one case, Hardiman wrote the dissenting opinion in favor of a mother and her kindergartener son, who was prohibited from using the Bible as part of a show and tell at school. He wrote that the prohibition “plainly constituted” discrimination based on the family’s viewpoint.

On Free Speech

Gorsuch issued a decision against a Colorado campaign finance law, determining that it unconstitutionally permitted major party donors to make two contributions per election cycle, while limiting minor party candidates to receive just one donation per election cycle. There is “something distinct, different, and more problematic afoot,” he wrote, “when the government selectively infringes on a fundamental right.”

Hardiman ruled against a student’s right to wear a bracelet that said “I [heart] boobies” during a breast cancer awareness campaign at his middle school. He described the case as “close,” but said it “would seem to fall into a gray area between speech that is plainly lewd and merely indecorous.”

In the case of NAACP v. City of Philadelphia, Hardiman ruled that Philadelphia’s ban on noncommercial advertisements at the city’s airport violated free speech rights.

Concerning campaign finance, Hardiman wrote the opinion striking down a Philadelphia law that barred police officers from contributing to the police union’s political action committee. (For more from the author of “Trump Likely to Name 1 of These 2 Judges to Supreme Court” please click HERE)

Follow Joe Miller on Twitter HERE and Facebook HERE.

4 Questions Trump MUST Ask His Potential SCOTUS Nominees

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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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Trump’s First 100 Days: His Supreme Court Choice Could Have a Lifetime Impact

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President Thomas Jefferson long ago offered a salient if sour lament about members of the Supreme Court: “They never retire, and they rarely die.”

So a vacancy in Washington’s most exclusive club is a time for political opportunity and obstacle. It is also something President-elect Donald Trump must confront in his first 100 days in office as he works to replace the late conservative icon Justice Antonin Scalia.

Sources close to the process say the president-elect is getting close to naming a nominee. He said on Fox News’ “Hannity” last week that he was “down to probably three or four” candidates and an announcement would come “pretty soon.”

“They are terrific people,” he added.” “Highly respected, brilliant people.”

A formal nomination would come after the inauguration. But how successfully Trump and his GOP allies can navigate the confirmation process in the first hectic days of his presidency will depend on how much political air it sucks up, amid other pressing personnel and legislative priorities. (Read more from “Trump’s First 100 Days: His Supreme Court Choice Could Have a Lifetime Impact” HERE)

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One of These 21 Men and Women Will Be Trump’s First Supreme Court Pick

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President-elect Donald Trump is that rare president who will nominate a Supreme Court justice almost immediately after taking office.

Trump is expected to act quickly to fill the seat of Justice Antonin Scalia, who died in February.

Two of the remaining eight Supreme Court justices, Ruth Bader Ginsburg, 83, and Stephen Breyer, 78, are older than average for a justice and may choose to retire. One-third of the potential nominees on Trump’s list of 21 contenders are 50 or younger, and four are women.

This could present a historic opportunity for Trump to reshape the Supreme Court, author and presidential historian Craig Shirley says.

“With a vacancy and aging people on the court, just as there was a Reagan court and just as there was a Roosevelt court, we might see a Trump Supreme Court,” Shirley told The Daily Signal, adding:

It is less likely these justices will retire. It’s more likely they will go out feet first. When you’re in your 80s, you might as well show up at the office. You’re not going to take up water skiing.

White House press secretary Josh Earnest told The Daily Signal that President Barack Obama is well aware of coming changes on the high court, though Earnest said he hasn’t heard the president discuss it.

“I’m not aware that the president has spoken to this, either publicly or privately,” Earnest said. “I think the president’s expectation is that President Trump will fill vacancies on the Supreme Court by appointing people who are quite different than the kind of people that President Obama appointed.”

Top Trump adviser Kellyanne Conway has said the president-elect is committed to choosing justices from the list of 21 candidates he released earlier this year.

Trump’s release of the list during the campaign was an unprecedented move, Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, noted after the election.

“Given the significance of the court to Trump’s voters, I’m confident that he will stand by his campaign promise to appoint someone from his excellent list of constitutionalist judges,” Severino said in a formal statement, adding:

While that still would leave the Supreme Court in a 4-4-1 balance, with Justice [Anthony] Kennedy as a swing vote, Trump is likely to have the opportunity to appoint additional justices, who can ensure that the Constitution is interpreted according to its text and original meaning and isn’t used as a vehicle for political policy goals.

Most on the list are state Supreme Court justices or U.S. Court of Appeals judges. The list include two individuals who have served in Congress and would have a political record to defend. Two brothers also are on the list.

Trump faced some criticism for lack of diversity, with eight white males among the 11 names on the initial list he released in May; his subsequent list in September included one South Asian and one Hispanic.

A Political Trail

At Senate confirmation hearings, Supreme Court nominees who already are judges typically avoid directly answering questions about how they would rule on a policy that might come before the nation’s highest court.

However, three of those on Trump’s list were elected by voters to offices that require taking public stances during the course of a campaign. Two of the three have gone on to become judges:

U.S. Sen. Mike Lee, R-Utah, is a big favorite of conservatives. Lee, 45, was also a strong critic of Trump during the presidential campaign. As a member of the Senate Judiciary Committee, Lee typically would be in the advise and consent role during confirmation hearings for judicial nominees. Before he was elected to the Senate in 2010, Lee served as an assistant U.S. attorney for Utah. He is a graduate of Brigham Young University Law School and clerked for Justice Samuel Alito.

Florida Chief Justice Charles Canady, 62, was a four-term Republican member of the U.S. House of Representatives in the 1990s. Canady was one of the impeachment managers that acted as a prosecuting team against President Bill Clinton during his Senate trial in 1999. Canady, on the state’s high court since 2008, was elevated to chief justice in 2010. He previously was a state appeals court judge. He is a graduate of Yale Law School.

Judge William H. Pryor Jr., a Bush appointee, has served since 2004 on the U.S. Court of Appeals for the 11th Circuit in Alabama. Pryor, 54, became Alabama’s attorney general in 1997 after his predecessor, Jeff Sessions, was elected to the U.S. Senate as a Republican. (Trump has announced he intends to nominate Sessions as U.S. attorney general.) Pryor was elected in his own right in 1998 as state attorney general and was re-elected in 2002. In 2013, he was confirmed to a term on the United States Sentencing Commission. Pryor received his law degree from Tulane.

State Supreme Court Justices

In recent years, presidents typically have plucked federal appeals court justices to serve on the Supreme Court.

Not since President Ronald Reagan nominated Arizona state appeals court judge Sandra Day O’Connor to the Supreme Court in 1981 has a state judge of any kind been elevated to the high court.

Trump’s list includes as many state supreme court justices as federal appeals judges. The inclusion of two district judges, however, means federal judges outnumber state judges:

Georgia Supreme Court Justice Keith Blackwell, named by Gov. Nathan Deal to the court 2012, previously was a state appeals court judge and state prosecutor. Blackwell, 41, was an assistant district attorney for Cobb County before becoming a deputy state attorney general. A graduate of the University of Georgia School of Law, Blackwell also has worked in private practice.

Colorado Supreme Court Justice Allison Eid, named to the state’s high court by then-Gov. Bill Owens, a Republican, in 2006, won 75 percent of the vote to retain the position. Eid, 51, previously was the state’s solicitor general. A graduate of the University of Chicago Law School, Eid clerked for U.S. Supreme Court Justice Clarence Thomas.

Michigan Supreme Court Justice Joan Larsen was named to the state’s high court by Gov. Rick Snyder, a Republican. Larsen, 48, in 2002 became an assistant attorney general in the Justice Department’s Office of Legal Counsel. Larsen, who also taught law at the University of Michigan. received her law degree from Northwestern and clerked for Scalia.

Utah Supreme Court Justice Thomas Lee is the brother of Mike Lee, so the list is no small achievement for the Lee family. Both men are the sons of former U.S. Solicitor General Rex Lee. Thomas Lee, 52, began serving on Utah’s high court in 2010, nominated by Gov. Gary Herbert, a Republican. (His brother was elected to the U.S. Senate that same year.) Lee previously was on the faculty of Brigham Young University Law School, where he continues to teach in an adjunct capacity. During the Bush administration, he was deputy assistant attorney general in the Justice Department’s Civil Division from 2004 to 2005. A graduate of the University of Chicago Law School, he clerked for Thomas.

Iowa Supreme Court Justice Edward Mansfield was appointed in 2011 by Gov. Terry Branstad, a Republican, and voters decided to retain him in 2012. Mansfield, 58, previously served on the Iowa Court of Appeals. He is a graduate of Yale Law School.

Minnesota Supreme Court Justice David Stras, 42, was appointed by Gov. Tim Pawlenty, a Republican, in 2010. He was elected to a six-year term in 2012. Before serving on the bench, Stras taught at University of Minnesota Law School. He received his law degree from the University of Kansas and clerked for Thomas.

Texas Supreme Court Justice Don Willett has served on the state’s high court since 2005, appointed by then-Gov. Rick Perry, a Republican, and re-elected twice by voters. Willett, 50, previously was a senior fellow at the Texas Public Policy Foundation. An adviser to George W. Bush’s gubernatorial administrations, Willett later served as a deputy assistant attorney general in the Justice Department’s Office of Legal Policy when Bush became president. He also was a deputy attorney general under then-Texas Attorney General Greg Abbott, now the state’s Republican governor. Willett received his law degree from Duke University.

Michigan Chief Justice Robert Young, 65, was appointed to the state’s high court in 1999 by then-Gov. John Engler, a Republican. He previously served as a judge on the Michigan Court of Appeals. He is a graduate of Harvard Law School.

Federal Appeals Judges

Trump could follow the model of most recent Supreme Court nominations by choosing a federal appeals court judge.

Two of President Barack Obama’s nominees were appellate judges—Sonia Sotomayor, confirmed by the Senate, and Merrick Garland, his pick to replace Scalia, who has not been confirmed.

President George W. Bush nominated John Roberts and Samuel Alito, both former appeals court judges who were successfully confirmed.

Obama also successfully nominated Elena Kagan, a former solicitor general who never before served as a judge. Bush nominated and later withdrew White House counsel Harriet Miers, also never a judge.

President Bill Clinton’s two Supreme Court appointees, Ginsburg and Breyer, were both federal appeals court judges.

President George H.W. Bush named David Souter, a former appeals court judge. Reagan’s other two nominees, Scalia and Kennedy, were both federal appeals court judges.

Appeals court judges on Trump’s list are:

Judge Steven Colloton of the U.S. Court of Appeals for the 8th Circuit in Iowa, was appointed in 2003 by George W. Bush. Colloton previously served as a U.S. attorney for the Southern District of Iowa. The 53-year-old graduate of Yale Law School clerked for the late Supreme Court Chief Justice William Rehnquist.

Judge Neil Gorsuch, 49, of the U.S. Court of Appeals for the 10th Circuit in Colorado, was appointed in 2006 by Bush. Before that, Gorsuch was a deputy assistant attorney general at the Justice Department. The Harvard Law School graduate clerked for both Kennedy and Byron White.

Judge Raymond Gruender, 53, was named by Bush to the U.S. Court of Appeals for the 8th Circuit in Missouri in 2004. He previously was a prosecutor and served as the U.S. attorney for the Eastern District of Missouri. He received his law degree from Washington University in St. Louis.

Judge Thomas Hardiman was appointed by Bush in 2007 to the U.S. Court of Appeals for the 3rd Circuit in Pennsylvania. Hardiman, 51, previously was a federal district judge for the Western District of Pennsylvania, a position he took in 2003. A Notre Dame graduate, Hardiman practiced law in Washington and Pittsburgh.

Judge Raymond Kethledge was named by Bush to the U.S. Court of Appeals for the 6th Circuit in Ohio in 2008. Kethledge, 50, previously served as judiciary counsel to then-U.S. Sen. Spencer Abraham, R-Mich. He also was in-house legal counsel for Ford Motor Co. The University of Michigan graduate clerked for Kennedy.

Judge Margaret A. Ryan of the U.S. Court of Appeals for the Armed Forces was appointed by Bush in 2006. As a military judge and a veteran, she stands out among other contenders. Ryan, 52, served in the Marine Corps in the Philippines and during the Persian Gulf War. She graduated from Notre Dame Law School on a military scholarship and served as a JAG officer for four years. She clerked for Thomas.

Chief Judge Timothy Tymkovich of the U.S. Court of Appeals for the 10th Circuit in Colorado, a Bush appointee, has served since 2003. Tymkovich, 60, previously was Colorado’s solicitor general. He is a graduate of the University of Colorado College of Law.

Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit in Wisconsin was named by Bush in 2004. Sykes, 58, had been a justice on the Wisconsin Supreme Court since 1999. Before that, she was a trial court judge in both civil and criminal matters. She received her law degree from Marquette.

Federal District Judges

Federal district judges are also rare Supreme Court nominees, but Trump’s list includes two:

Judge Federico Moreno of the Southern District of Florida is a member of the Judicial Conference of the United States, the national policymaking body for the federal courts. Moreno, 64 and Hispanic, appointed in 1990 by President George H.W. Bush, previously was a state and county judge in Florida. He is a graduate of the University of Miami School of Law.

Judge Amul Thapar of the Eastern District of Kentucky was appointed by the younger Bush in 2007. He has taught law students at the University of Cincinnati and Georgetown. Thapar, 47, previously served as an assistant U.S. attorney in Washington, D.C., and the Southern District of Ohio. He is of South Asian descent. Just before being named to his judgeship, Thapar was U.S. attorney for the Eastern District of Kentucky. He got his law degree from the University of California, Berkeley.

(For more from the author of “One of These 21 Men and Women Will Be Trump’s First Supreme Court Pick” please click HERE)

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This Is Your Chance to Shape the Alaska Supreme Court

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In addition to the high profile contests on Nov. 8, your Alaska ballot will list Alaska judges up for retention by a “yes” or “no” vote. Judges are not selected by the people or their elected representatives, so the only place democracy intrudes on the judiciary and their decisions is the retention election.

This year two Alaska Supreme Court justices, Joel Bolger and Peter Maasan, are on the ballot. Earlier this year Bolger and Maasan voted to strike down, as unconstitutional, a law providing for parental notification for a minor’s abortion enacted as an initiative by the people in 2010 with 90,000 Alaskan voters approving the initiative, a 56% majority.

In 2007 the same court struck down a parental consent law enacted by the people’s representatives, the Alaska Legislature. In doing so, the court stated multiple times, in clear and unmistakable language, that a notification law would be constitutional. Nine years later, after the public relied on their word, in a classic “bait and switch,” the court brushed aside its own previous decision and struck down the very law they said would be constitutional.

There are lessons to be learned from this blatant dishonesty. Both the U.S. and Alaska Constitutions created a democratic republican form of government, not a judicial oligarchy. Separation of powers is a critical element in each constitution, but the democratic nature of government is fundamental. The Alaska court has repeatedly violated this principle by freely striking down laws as unconstitutional, without any basis in law or history, deciding for themselves questions of society that only society has the right to decide. In his first inaugural address, President Lincoln commented on Dred Scott vs. Sanford, the ruling that held blacks had no rights and were mere property. “. . . [I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, in the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.”

Abortion is clearly a subject that the judiciary will not allow the people to decide, even when the people in good faith follow the express directives of the court. Currently before the court is a case on a statute banning public funds for elective abortions. In a previous decision requiring state funding for medically necessary abortions, the court clearly stated that the State of Alaska is not required to fund elective abortions. As with parental notification, the law now before the court was tailored to meet that decision. Given this latest reversal we can expect the same for publicly paid abortions.

There is another principle that governs court decisions and its ideologically driven abortion rulings: Lex muista non est lex (Latin: An unjust law is no law at all). This standard legal maxim was originated by Saint Augustine, used by Saint Thomas Aquinas, and, more recently, by Rev. Martin Luther King, Jr. during the Civil Rights movement to describe legal racial segregation and discrimination against black people. It is applicable to the decisions of the Alaska Supreme Court as well.

The people have very limited ability to object to judicial power and decisions. The retention elections are the only way the Alaska Constitution provides. Take the time to think about the role of the judiciary and the moral nature of their decisions. The retention elections of Joel Bolger and Peter Maasan are the opportunity to express your approval or disapproval of judicial behavior. (For more from the author of “This Is Your Chance to Shape the Alaska Supreme Court” please click HERE)

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These 8 Supreme Court Elections Could Have Huge Implications for Conservatives

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Election Day is Tuesday, which means that in addition to voting for president, congressmen, senators, local officials, and ballot initiatives from sea to shining sea, voters in most states will also be deciding on who sits on their state and local courts.

According to Ballotpedia, 34 states are currently holding elections for their respective state supreme courts and lower appellate courts across the country.

What’s more, 2016 promises to be a record-setting cycle for these races. According to the Brennan Center for Justice, a record $14 million of outside money has been spent on media buys for state supreme court seats this election. This already breaks the previous $13.5 million record for independent expenditure during the 2011-12 cycle.

Here is a quick breakdown of some of the most important races to watch.

North Carolina:

Possibly the highest-profile state high court race is going to be in the Tar Heel State, where Republican incumbent Bob Edmunds faces off against Democrat challenger Mike Morgan, who currently serves on the N.C. superior court.

The seven-member court is currently split between four Republicans and three Democrats, meaning that the election could tip the balance in a state that has become a battleground for several crucial issues.

Though officially a nonpartisan election, Edmunds remarked to the Salisbury Post that the current contest is “the first time I’ve had a race that’s gotten on the front page of newspapers.” The 67-year-old jurist went on to implore voters to weigh a candidate’s “respect for the rule of law” with regard to their state’s highest court. Mike Morgan, meanwhile, has been endorsed by President Obama.

Current estimates of outside spending on the race — an eight-year term — top $2 million, reports Josh Bergeron and the Salisbury Post.

Alabama:

The Yellowhammer State has partisan elections, and Republican justices are currently in control of the Alabama bench. The three Republican incumbents are currently running unopposed, meaning there is no chance of an election-night shift for the bench. But the election is worth keeping an eye on for the extra-electoral buzz surrounding it.

Alabama’s nine-member supreme court has fallen into controversy in recent months due to the extrajudicial suspension of Chief Justice Roy Moore in September. As a result of an administrative order issued earlier this year, Alabama became the first state high court to challenge the federal Supreme Court since before the Civil War, when states like Wisconsin clashed with Justice Taney’s decision in Dred Scott v. Sanford.

Furthermore, a federal lawsuit filed in early September alleges that, under the Voting Rights Act, the state’s current election system somehow “unlawfully dilutes the voting strength of African Americans.”

Louisiana:

Louisiana currently has one contested supreme court race (one incumbent on the seven-member court is running unopposed), in which Jimmy Genovese and Marilyn Castle (both Republicans) are vying for the open seat of the retiring Janet Knoll. Justices are elected to 10-year terms on the Louisiana Supreme Court.

Recent reports show that the appeals court judge Genovese has raised about twice as much as Castle — roughly $1 million — and has a very dim view of judicial activism, recently remarking, “If the law needs to be changed, it is not our job on the bench to change those laws. It is the function of the legislative branch to make it right.”

“It is necessary that those separation of powers be kept in place and be honored,” Genovese told the Louisiana Record.

Castle, a district court chief justice, is the reported favorite of corporate interests in the state, LINK especially those in the energy sector concerned about “legacy lawsuits” that might result from environmental damage.

Kansas:

Kansas’ supreme court election could be a big win for conservatives — especially when it comes to abortion issues and the death penalty. But according to polling, the race is up in the air right now.

Currently, five of the Sunflower State’s top jurists are up for retention in the state’s nonpartisan election (held every six years). Four of the five were appointed by either Democratic or establishment Republican governors. If the jurists are not retained, Governor Sam Brownback would be able to fill the majority of seats on the court after having four slates presented to him under Kansas’ truly bizarre selection process.

However, with the death penalty, abortion legislation, and school choice in the mix, Kansans are split on the issue.

According to polling conducted by KSN News through SurveyUSA:

Twenty percent said none should be retained, and that all five on the bench should be gone. Fifteen percent said only one should be retained, while 16 percent said that two to four justices should stay. Twenty six percent said that want all justices to stay. Twenty-two percent were undecided.

It’s also worth noting that a judge has never lost his seat through a retention election, so this could also throw the court into uncharted territory. Former Kansas governor and Health and Human Services Secretary Kathleen Sebelius has been on the road in recent weeks campaigning for the retention of all five jurists.

Texas:

Republicans currently hold a 9-0 majority on the Lone Star State’s high court, but three of them are currently facing reelection challenges from Democrats. The challengers are undoubtedly hoping that Donald Trump’s effect on disenfranchised Republican voters planning on staying home on Election Day might aid their long-shot bids. State justices are elected to six-year terms.

According to a profile at the Texas Tribune, the Democratic challengers include Mike Westergren, who is trying to “out-Bernie Bernie Sanders” with his small-donor fundraising model; Dori Contreras Garza, who is running on the “diversity” platform of making the high court “more representative” of the state’s demographics; and Savannah Robinson, a first-time, 60-year-old candidate with no campaign website, and no fundraising apparatus.

Texas hasn’t elected a Democrat to its supreme court since Bill Clinton’s days in the Oval Office.

Iowa:

Chief Justice Mark Cady and Justices Brent Appel and Daryl Hecht are facing reelection for the first time since the state’s high court unanimously redefined marriage seven years ago, well ahead of last summer’s Obergefell decision. Just a year after the Hawkeye court’s decision, three of the other concurring in the decision failed their bid for retention following a massive grassroots response from social conservatives unhappy with the justices’ votes to legalize gay marriage.

“I think it will send a message across the country that the power resides with the people,” Bob Vander Plaats, a leading campaign activist in the election, said at the time. “It’s we the people, not we the courts.”

According to the AP, Cady, Appel, and Hecht have opted against campaigning for retention, citing their belief that the court should be above politics.

Ohio:

Ohio currently has 30 judgeships up for grabs on Tuesday in a nonpartisan election. Three of these are on the state supreme court. One of those seats is uncontested, with the other two being cases in which the current justices have reached the Buckeye State’s mandatory retirement age.

Ohio’s supreme court justices run for six-year terms. Currently featuring a 6-1 Republican bend, this means that the two contested elections could create a narrow 4-3 split on the swing state’s bench.

According to an Associated Press report:

Cincinnati appeals court judge Pat DeWine, a Republican, has booked almost $644,000 in TV ads, according to an analysis by the Brennan Center. DeWine’s opponent, Warren Democratic appeals court judge Cynthia Rice, released her first TV ad Monday, but no spending figure was immediately available.

Democrats say DeWine will face a monumental conflict of interest if elected because his father is Attorney General Mike DeWine. DeWine says he has been assured through legal opinions that he would have to step aside only if his father personally argued a case.

Meanwhile, in the other contested race, Republican Pat Fischer squares off against Democrat John O’Donnell.

According to a recent profile by Angela Hatcher and the Cincinnati Enquirer, Fischer worked as a janitor and referee to help pay for his undergraduate and law school degrees at Harvard University and serves on the Ohio Constitutional Modernization Commission. John O’Donnell, meanwhile, previously worked as a claims adjustor and graduated from Cleveland-Marshall Law School. He has presided over hundreds of criminal cases as a county court of common pleas judge.

Both Fischer and O’Donnell have voiced their law-over-party philosophy in this nonpartisan election.

Washington:

The makeup of Washington state’s nine-justice supreme court — to which justices are elected to six-year terms — could be fundamentally altered over an anti-school choice decision from last year.

The race for incumbent Charlie Wiggins’ seat has drawn the attention of tech industry moguls like Microsoft co-founder Bill Gates and former Microsoft CEO Steve Ballmer, who are looking to oust Wiggins in favor of municipal court judge Dave Larson.

According to Geekwire, Gates and others’ contributions are going into a PAC called Citizens for Working Courts Enterprise Washington, with innovation in education being a top priority for the campaign:

The PAC throwing its weight behind Larson is likely due to his background with the landmark McCleary lawsuit, which called on the state to fully fund public schools. When he was president of the Federal Way School Board, Larson spearheaded an education-funding lawsuit. It was unsuccessful, but it laid the groundwork for the state Supreme Court McCleary ruling.

The Washington State Supreme Court declared public charter schools unconstitutional in 2015, three years after Gates and company dumped millions into a public charter school initiative.

Wealthy individuals on the pro-school choice side have also contributed large donations to unseat state chief justice Barbara Madsen, who wrote the McCleary decision last year, in favor of prosecutor Greg Zempel.

For the third contested seat, incumbent Justice Mary Yu is running to hold her position against David DeWolf, a professor at Gonzaga law school for the past 25 years.

So what makes these cases so important?

These are the judicial bodies that were originally meant to handle most issues of state law — before widespread federal overreach took that away. Nonetheless, state supreme courts still have a tremendous impact on how their respective states function, as elections have a tremendous effect on how judges rule in hot-button cases, a recent study shows.

The 2016 election’s focus on Justice Scalia’s empty Supreme Court seat has left many Americans feeling helpless about the judicial direction of the country. But lower judicial elections are where voters can have a direct impact on how policies that affect them most often are decided.

Just as far more emphasis should be placed on electing local officials that share the concerns and values of voters, the same can be said for lower court elections. Regardless of the outcome, America may still end up with a more liberal court at the national level after Tuesday, but that doesn’t have to be the case at the state level. (For more from the author of “These 8 Supreme Court Elections Could Have Huge Implications for Conservatives” please click HERE)

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Republican-Appointed Supreme Court Justices May Disappoint, but Democratic Appointees Will Horrify

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One of the biggest reasons Christian conservatives are voting for Donald Trump is the make-up of the Supreme Court, and the reasoning is simple: If Hillary Clinton becomes president, she will nominate between two and four new justices, and that could have a disastrous effect on the nation for the next 20-40 years, threatening our fundamental liberties and making it virtually impossible to overturn Roe v. Wade for a generation or more.

But are these concerns exaggerated?

Dr. Benjamin L. Corey, who blogs as a committed (and formerly fundamentalist) Christian, recently posted an article entitled, “The Christian Right’s False Hope In A Conservative SCOTUS,” in which he challenges the idea that “if we had a SCOTUS filled with justices largely appointed by Republicans, we wouldn’t have Roe v. Wade, right?”

Corey rightly observes that “it was a majority Republican appointed SCOTUS that legalized abortion in the first place,” noting that 5 of the 7 justices who voted for Roe were appointed by Republicans.

He writes, “Even in the time since Roe v Wade, we’ve had periods of Republican dominance of SCOTUS — at one point with 8 of the 9 justices were Republican! And yet, there have still been plenty of rulings that were objectionable to the right wing– including the upholding of Roe v. Wade.”

He continues, “So here’s my question: if legalized abortion was given to America by a Republican SCOTUS, and if it has been upheld by an almost unanimously Republican SCOTUS, why the heck is one of the major selling points of this election the idea that they’ll get more court picks so that they can finally overturn it?”

In fact, Harry Blackmun, who authored the majority verdict in Roe v. Wade, was a Nixon appointee who was expected to hold a conservative position on abortion. Instead, he became a passionate supporter of a woman’s “right” to have an abortion.

Is Corey, then, correct in reproving Christian conservatives who are trusting in Donald Trump to nominate good SCOTUS justices who will (hopefully) overturn Roe v. Wade and stand for our fundamental freedoms?

On the one hand, he is absolutely right in raising a cautionary flag, reminding us of how often we have been disappointed with either the justices appointed by a Republican president or, even more profoundly, with the decisions made by some Republican appointees.

After all, it was Justice Kennedy, appointed by Reagan, who was the notorious swing vote in the Obergefell v. Hodges decision that redefined marriage, writing the majority opinion.

And it was Chief Justice John Roberts, appointed by George W. Bush, who was a strong, surprise vote in upholding Obamacare.

And so, we do well not to vote for Trump with naïve expectations, not only regarding the make-up of SCOTUS but for other reasons as well (although, as I have recently explained, I plan to vote for him). And we do well not to put our hope in the decisions that will be made by the Supreme Court, recognizing that the ultimate way America will be changed will be through the faithful witness and work of the church.

But there’s something important that Corey appears to have missed, which is this: While the votes of conservative-appointed SCOTUS justices sometimes disappoint conservatives, the votes of liberal-appointed SCOTUS justices rarely disappoint liberals.

In other words, a liberal-appointed justice is much more likely to be consistent in his or her rulings than will a conservative-appointed justice, one reason being that it appears that Republican presidents have sometimes appointed more middle of the road conservatives while Democrat presidents have appointed more radical liberals.

Just look at how Justices Kagan and Sotomayor, both appointed by Obama, and Justices Ginsburg and Breyer, both appointed by Bill Clinton, have voted on major cases, including Obergefell and Hobby Lobby. There were no surprises from any of them in these cases.

And ask yourself how some recent, critically important, 5-4 decisions would have turned out if there was a Clinton or Obama appointee voting rather than Justice Scalia (appointed by Reagan) or Justice Alito (appointed by George W. Bush) or Justice Thomas (appointed by George H. W. Bush; note also that Scalia, Alito, and Thomas have been quite consistent in their rulings).

Accordingly, while five out of the seven Republican-appointed justices disappointed their conservative constituents in Roe v. Wade, the two Democrat-appointed justices did not disappoint their constituents in voting in favor of Roe.

Not only so, but since 1973, the lines have been drawn much more clearly in the abortion debate and there are clearer litmus tests that can be used in appointing justices by either potential president.

And while I agree with Corey that there’s certainly no guarantee that Trump-appointed justices would even attempt to overturn Roe v. Wade, let alone succeed in doing it, there is a virtual guarantee that Hillary-appointed justices would rule against pro-life legislation and for pro-abortion legislation, not to mention ruling the wrong way on the many religious liberty cases that are expected to come before SCOTUS in the coming years, along with other cases involving the meaning of marriage, the right to bear arms, and more.

Just consider recent bills like California’s AB 1266, which could effectively shut down Christian colleges, or recent rulings like Ninth Circuit’s upholding of the California law that pro-life pregnancy centers refer clients to abortion clinics, and ask yourself how SCOTUS would rule with new Hillary appointees on board.

And what of the roughly 250, life-appointed, federal judges who the next president will nominate? Shall we factor that in as well?

In light of these realities, it does make good sense to vote for Trump and against Hillary, more with the certainty of the damage she will do rather than with the hope of the good that he will do.

Considering just how many close, monumentally important, rulings have come down in the last few years, the stakes really are quite high. (For more from the author of “Republican-Appointed Supreme Court Justices May Disappoint, but Democratic Appointees Will Horrify” please click HERE)

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25 Years After Thomas Joins Supreme Court, a Friend Hails an American Originalist

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Not every justice on the Supreme Court connects the “magical words” of the Declaration of Independence with the government structure set up in the Constitution to protect natural rights as expressed by Thomas Jefferson.

In fact, the only one to do so with any consistency in recent years is Justice Clarence Thomas, a friend and former White House lawyer said in an interview with The Daily Signal on the occasion of the 25th anniversary of Thomas’s swearing-in.

“What we now have after Thomas has served for 25 years on the court is not just an amazing and inspiring life story, but a remarkable record of jurisprudence,” recalled Mark Paoletta, who was on the White House legal team when President George H.W. Bush nominated Thomas to the high court.

Other judges have produced “originalist” decisions, Paoletta said, but Thomas stands out as the one most willing to challenge prior court decisions that in his view conflict with constitutional rights, some of them lost to history and calling out for restoration:

Thomas is the one justice who is most willing to look back to the Declaration of Independence as the lodestar of our constitutional structure and how this leads into the concept of federalism, the separation of powers, the suspicion of centralized power and how dangerous it can be to liberty, which is why only certain powers are given to the federal government.

Thomas will deliver The Heritage Foundation’s Joseph Story Distinguished Lecture on Wednesday evening.

Thomas was sworn in as the 106th justice of the Supreme Court — and only the second black — in a private ceremony there on Oct. 23, 1991. The quiet dignity of the event belied the firestorm of controversy that surrounded his confirmation hearings before the Senate Judiciary Committee.

The Senate voted 52-48 to confirm Thomas after he endured an onslaught of attacks that included unsubstantiated allegations of sexual harassment. Thomas described the turn taken by his confirmation hearings as a “high-tech lynching for uppity blacks who in any way deign to think for themselves.”

‘Challenging Civil Rights Leadership’

Thomas’s jaundiced view of liberals’ concept of a “living Constitution” that could be molded and reshaped to fit contemporary political agendas antagonized liberal pressure groups that favored abortion rights and racial preferences.

Many of these same groups had worked successfully to convince Democrats to reject President Ronald Reagan’s nomination of Robert Bork to the Supreme Court in 1987. Bork, a former U.S. solicitor general who served on the U.S. Court of Appeals for the District of Columbia, shared many of Thomas’s convictions on the role of the judiciary.

With an eye toward the failed effort to confirm Bork, the political and legal team inside the White House of George H.W. Bush were prepared to mount a vigorous defense of Thomas, Paoletta recalled.

“One of the great achievements of [the elder] George Bush as president was the confirmation of Clarence Thomas to the Supreme Court,” Paoletta told The Daily Signal. “We had a lot of people involved with Bork who recognized what a titanic effort this would be, and they were ready to go on the offensive for Thomas and to provide a rapid-fire response against his critics and to make the case for him.”

While the Bork hearings were “game changing” in terms of how they affected subsequent confirmation processes, Paoletta said, he is convinced that in many respects the left’s attacks on Thomas were more severe and personal:

The Bork hearings showed us all how nasty the left is, and what’s shocking is that as bad as the Bork hearings were, the Thomas hearings were actually worse in terms of now nasty and vicious the left was toward Thomas. I think this had a lot to do with the fact that he was a black conservative who was challenging the civil rights leadership.

While civil rights leaders of the day put their emphasis on group rights that rely upon government solutions such as affirmative action, Thomas emphasized individual rights consistent with natural law as expressed in the Declaration of Independence, Paoletta said.

“I think the black leadership always viewed him as a threat to their business, so they sent out this signal that it was OK to go after him,” Paoletta said. “So you had this toxic combination of the civil rights leadership with all of the other groups that opposed Bork coming together to oppose Thomas.”

Thomas as Natural Law Judge

Since joining the Supreme Court, Thomas has emerged as a staunch proponent of “originalist” jurisprudence and as someone who takes a dim view of longstanding precedents that intrude upon the natural rights of all Americans.

While in some ways the drama of the Thomas confirmation battle never quite subsided, the justice’s contributions to the cause of originalism most intrigue Paoletta.

Thomas’s willingness to uproot “stare decisis”–the doctrine of upholding legal precedents–when it conflicts with the Constitution’s original meaning has placed the justice at odds with jurists and academics from across the political spectrum.

Paoletta points to the 2010 case of McDonald v. City of Chicago, where Thomas separated himself not just from his liberal colleagues but from other justices who might be considered originalists.

Five of the nine justices ruled that the 14th Amendment protects Americans’ individual right to keep and bear arms, and that the states cannot infringe on this right. Four of them based their decision on the doctrine of substantive due process, but not Thomas. Instead, he wrote a concurring opinion seizing upon the 14th Amendment’s “privileges or immunities” clause, which essentially had been discarded by the high court in the 1873 Slaughter-House cases.

Paoletta acknowledges that this commitment to the fixed meaning of the Constitution and the ideals of the American founding period sometimes puts Thomas in conflict with elite opinion, but as far he is concerned it also puts Thomas squarely on the side of “We the People.”

Paoletta, now a partner in the Washington law firm of DLA Piper, played an instrumental role both in the nomination and confirmation of Thomas to the Supreme Court.

Paoletta first reached out on behalf of the White House when Thomas was chairman of the U.S. Equal Employment Opportunity Commission. He asked Thomas to send speeches, articles, and other material in anticipation of his appointment by Bush to the U.S. Court of Appeals for the District of Columbia in 1990.

The following year, Paoletta had a front row seat during the most contentious moments of Thomas’s Supreme Court confirmation hearings. The two men have remained close friends.

‘A Horrible Experience’

Now that Thomas, 68, has served on the court for a quarter of a century, Paoletta, 54, continues to work to correct the record where he sees revisionist history and biased reporting in play.

He set up a website, ConfirmationBiased.com, as a rejoinder to the HBO docudrama “Confirmation,” which aired in April. Paoletta describes the film as a “classic Hollywood hit job” and an “all-out assault on Thomas” that distorts the truth of what transpired during the hearings.

The docudrama is riddled with “glaring omissions and distortions” that can’t be reconciled with key facts, according to ConfirmationBiased.com. That’s in large part because the story Anita Hill presented to the Senate Judiciary Committee in October 1991 was neither believable nor credible, Paoletta argues.

Hill, a law professor who had worked for Thomas at both the Department of Education and Equal Employment Opportunity Commission, testified that he sexually harassed her. But when members of the Judiciary Committee questioned key details of her televised testimony, Paoletta points out, Hill revised and retracted some of her statements.

Paoletta said the docudrama also failed to focus attention on 12 female witnesses who testified on behalf of Thomas. The women had worked with both Thomas and Hill, and said they did not believe Hill’s allegations.

“Even though this was a horrible experience for Thomas, the American people were able to watch those hearings uninterrupted and unfiltered and make their own assessment,” Paoletta told The Daily Signal, adding:

They saw 12 incredibly impressive, strong women who came forward in support of Thomas. But not a single coworker of Hill’s came forward to support her allegations. Usually when you have a case like this, you have many witnesses, not just one. With the case involving Bill Cosby, for example, you have scores of women coming forward. But no one else made the allegations Anita Hill did. Her story was just not plausible.

“Once Thomas was nominated, I spoke with him on a daily basis and the day the Anita Hill allegations broke I stayed close to him,” Paoletta said. “When you go through something like that together, it creates a bond.”

‘Refreshing and Exciting’

By a margin of more than 2 to 1, the American public believed Thomas, and about 26 percent of women believed Hill, according to a New York Times/CBS News poll taken after the hearings in 1991.

“There’s no gender gap there in that poll,” Paoletta said. “Her story just did not add up. The American people took Hill’s full measure and found her wanting.”

Yet organizers of the Smithsonian’s new Museum of African American History and Culture virtually lionize Hill in one exhibit while relegating Thomas to a relative footnote, as both the justice’s admirers and fair-minded historians note.

Five days before the private swearing-in at the Supreme Court 25 years ago Sunday, Thomas was sworn in at the White House with more than 300 family and friends in attendance. (That event can be viewed here.)

Despite ongoing efforts on the left aimed at tarnishing his reputation, some continuing to invoke Hill’s claims, Thomas has made lasting and enduring contributions to the cause of originalism, Paoletta said.

While Thomas is widely viewed as someone who was closely aligned with Justice Antonin Scalia until his death in February, Paoletta says he saw important differences between the two.

“Where Scalia once described himself as a ‘faint-hearted originalist’ who would look to precedent,” Paoletta said, “Thomas is undeterred by precedent when it conflicts with the original meaning of the Constitution.”

(Nearly 25 years later, Scalia, a Reagan appointee, said he “repudiated” those words and instead would call himself an “honest” originalist.)

Paoletta set up a second website, JusticeThomas.com, to detail Thomas’s judicial philosophy and some of the most consequential cases that flesh out the justice’s originalist philosophy.

“What Thomas has done is to go back and dig down deep into every constitutional provision that comes before the court, and to apply the original meaning and to invite litigants to revisit these issues when an earlier decision may have gotten it wrong. That’s refreshing and that’s exciting,” Paoletta said, adding:

When Scalia came along, no one else was really looking at the text or the original meaning, and we are all indebted to Scalia for his remarkable jurisprudence. But it was Thomas who came along and said he would not be cabined in by a judicial process that did not go back and determine what the constitutional text was actually saying. Thomas has taken originalist jurisprudence and made it even stronger because he is unencumbered by precedent.

Beginnings

Paoletta first met Thomas in 1983, when he was an intern for the Republican National Committee and was fortunate enough to hop a ride with Bush, then vice president, on Air Force Two.

It was October, and Bush was flying to Bridgeport, Connecticut, to campaign for Paoletta’s uncle, Leonard S. Paoletta, then the city’s Republican mayor. It turned out Thomas was speaking that same day at Sacred Heart University in Fairfield, Connecticut, and met up with the White House team.

“He made a very big impression on me that day,” Paoletta recalled. “Even back then, I could see how electrifying he was.”

Fast forward to 1989, when Paoletta was working in the White House Office of Personnel. He was assigned the task of reaching out to Thomas about a potential appointment, though it wasn’t clear what exactly it would be. As requested, Thomas sent the White House copies of his writings, speeches, and other materials.

“Even then, I could see from all the material from the 1980s that Thomas was thinking about the Declaration of Independence and the natural law. I could see from his article and speeches that he was taking on certain institutions, and taking on Congress, for example, for passing things on administratively that it should not.”

After the elder Bush appointed Thomas to the D.C. Court of Appeals, the judge offered Paoletta a clerkship with a warning that, unlike the White House, working in that environment would be similar to working in a “monastery.”

When Paoletta informed his White House colleagues of the opportunity, they asked him to serve instead in the Office of White House Counsel. Thomas gave his blessing to the move. (For more from the author of “25 Years After Thomas Joins Supreme Court, a Friend Hails an American Originalist” please click HERE)

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