The Weekly Standard published an article by Randy Barnett and me offering five lessons of how the President should select the next Supreme Court nominee. Our fourth lesson is that Presidents should focus on the “Constitution, not issues du jour.” We contend that it is myopic for a President to pick a Justice with an eye on how the Judge may vote on specific issues of the day. One species of this argument can be described as what Randy described as “restraint for thee, but not for me.” In other words, when my party is in power, we want the courts to be restrained to let our agenda thrive. For example, the Bush Administration appointed judges with an eye towards bolstering the war on terror. But this perspective is extremely short-sighted, because once a different party is in power, the calls for restraint switch rapidly. The same sort of advocates who wanted restraint on the war on terror, call for engagement with respect to Obamacare.
Jennifer Rubin made a related point on Twitter, writing that “objectively. if legislature and executive understand constitutional obligations courts don’t have heavy lift.” She isn’t wrong, but the history of our country, with the Presidency switching between the parties every eight years or so, is that there are radically different understanding of constitutional obligations. Appointing courts with an eye towards a specific four-to-eight year period ignores the other two decades during which they serve. It is for this reason that the focus should be on broader constitutional philosophy, rather than the immediate benefits or minimalism.