In the Weekly Standard, Randy Barnett and I offer five lessons that should guide the next GOP selection for the Supreme Court. Here is the introduction, and the five lessons:
When Chief Justice John Roberts administers the oath of office to the next president, he will be flanked by three, and almost four, octogenarians: Justices Ruth Bader Ginsburg (83), Antonin Scalia (80), Anthony Kennedy (80), and Stephen Breyer (77). The next president will likely have the opportunity to appoint a replacement for one, two, three, or maybe even four of those justices. These decisions will reshape the Court and how it reads the Constitution for decades to come. Republican presidential candidates will likely pledge to appoint “constitutional conservatives” to the bench—which ought to mean judges who will be constrained by its original meaning. However, GOP presidents have filled 12 out of 18 Supreme Court vacancies over the past half-century, with disappointing results. This track record teaches five important lessons that should guide future nominations.
1. Bruising confirmation battles are worth the political capital for a lifetime appointment …
2. Paper trails are an asset, not a disqualification
3. Reject clichéd calls for ‘judicial restraint’
4. Focus on the Constitution, not issues du jour
5. Focus on clauses, not cases
Randy and I offer a lot of different ideas of how best to select judges, and learn from past selections (both the good and the bad). Our sincere hope is that these guidelines elevate the debate over judicial selections from hackneyed cliches to meaningful discourse.