The Supreme Court and the Second Republican Debate

September 16th, 2015

During the second Republican debate, the topic of the Supreme Court came up during an exchange between Jeb Bush and Ted Cruz. With some slight hesitation, I would humbly suggest that the piece Randy Barnett and I wrote in the Weekly Standard affected the tenor of this debate for the better.

Dana Bash asked Jeb about whether the appointment of Chief Justice Roberts was a mistake:

BASH: Governor Bush, let’s talk about the issue that’s very important to Republican voters, and that’s the Supreme Court. After Chief Justice John Roberts voted to uphold Obamacare twice, Senator Cruz criticized your brother for appointing John Roberts to the Supreme Court.

Looking back on it, did your brother make a mistake?

I pause here, briefly, to note that the Supreme Court did not come up at any of the presidential debates between Romney and Obama. I noted in Unprecedented that John Roberts was no doubt glad that–and indeed his vote may be hinged on–the Supreme Court would not be an election issue. It’s perverse that this same topic is coming back, three years later, in the 2015 debates.

First, Jeb shot back at Ted, who as Texas SG supported the confirmation of Chief Justice Roberts.

BUSH: Well, I’m surprised Senator Cruz would say that since he was as strong supporter of John Roberts at the time.

Bush then turns to what it takes to appointing a Justice:

I will talk about what I will do as it relates to appointing Supreme Court Justices. We need to make sure that we have justices that, with a proven experienced record of respect for upholding the constitution. That is what we need. We can’t have — the history in recent past is appoint people that have no experience so that you can’t get attacked.

And, that makes it harder for people to have confidence that they won’t veer off…

His answer here differs slightly, but significantly, from what he has said in the past. Whereas in the past, he repeated the cliche about appointing justices with “a proven record of judicial restraint” here he pivoted to “upholding the constitution.” If you watch the video, my sense was that he was pausing slightly, to make sure he said the right thing.

Bush also explained that you can’t “have confidence” in people with “no experience,” as these are the people who will “veer off.” This is precisely the point Randy and I made about SCOTUS-wannabes.

These SCOTUS-wannabes spend their careers seeking the approval of others, in the hopes that one day they will be nominated because of their friendships across the political spectrum. Then, unimpeded by anything controversial in their records, they can sail through a confirmation hearing. These are the exact sort of people who will be cowed by the Beltway social pressures and the New York Times editorial page. Such willfully “stealth candidates” should be disqualified from consideration for the Supreme Court—the position in Washington most vulnerable to these influences.

Bash then asked, “Is John Roberts one of those people?” Bush replied with another very strong point:

BUSH: John Roberts has made some really good decisions, for sure, but he did not have a proven, extensive record that would have made the clarity the important thing, and that’s what we need to do. And, I’m willing to fight for those nominees to make sure that they get passed. You can’t do it the politically expedient way anymore. This is the culture in Washington. You have to fight hard for these appointments. This is perhaps the most important thing that the next president will do.

I couldn’t agree more. Randy and I explain that the most important legacy a President has is the Supreme Court, and the White House should fight as hard as possible, and not take the “politically expedient way” of going with an easy nominee.

Whatever political capital was gained or sought in 1987, 1990, and 2005 by appointing a less-contentious nominee to avoid a bruising political fight is entirely dwarfed by the impact a justice has on our legal order over three decades. The appointment of a justice should be viewed on the same plane as a president’s “signature” legislative achievements. After the enactment of the Affordable Care Act, President Obama’s most enduring political legacy may well be his appointments of Justices Sonia Sotomayor and Elena Kagan. Obamacare can still be repealed. These appointments are for life.

Later on in the colloquy, Bush slipped slightly and reverted to the cliche about “legislating from the bench.”

But, the simple fact is that going forward, what we need to do is to have someone that has a long standing set of rulings that consistently makes it clear that he is a focused, exclusively on upholding the Constitution of the United States so they won’t try to use the bench as a means to which legislate. …And, that’s what we should do, and I hope I’ll be working members of the United States Senate to fight hard for the passage of people that have that kind of qualification.

Alas, he fell into old habits. He should stick with the “uphold the Constitution” line, and stay away from the “bench legislating” line. But on the whole, Bush’s answers were much sharper, and conveyed the significance of appointing Justices with paper trails, as past performance is the best indication of future performance.  Kudos to Jeb.

Cruz repeated a point he has made before that he would have picked Edith Jones over David Souter, and Mike Luttig over John Roberts.

If, instead, the President Bush had appointed Edith Jones, and Mike Luttig, which is who I would have appointed, Obamacare would have been struck down three years ago, and the marriage laws of all 50 states would be on the books. These matter, and I fought to defend the constitution my whole life…

I’ve seen a few snark that Chief Justice Roberts dissented in Obergefell, so that decision would have come out the same way, but it mistakes that Edith Jones would not have retired (so early) when Souter did, and she would be sitting on the Court instead of Justice Sotomayor. This 5-4 decision (and many others!) would likely have gone the other way.

Cruz then echoed the point that Jeb made–that Bush 41 and Bush 43 did what was expedient. This was a mistake:

CRUZ: It is true that after George W. Bush nominated John Roberts, I supported his confirmation. That was a mistake and I regret that. I wouldn’t have nominated John Roberts, and indeed, Governor Bush pointed out why.

It wasn’t that the President Bushes wanted to appoint a liberal to the court, it’s that it was the easier choice. Both David Souter and John Roberts, they didn’t have a long paper trail. If you had nominated Edith Jones or Mike Ludig (ph) you would have had a bloody fight and they weren’t willing to spend political capital to put a strong judicial conservative on the court.

Randy and I make a very similar point about “political capital.”:

Whatever political capital was gained or sought in 1987, 1990, and 2005 by appointing a less-contentious nominee to avoid a bruising political fight is entirely dwarfed by the impact a justice has on our legal order over three decades.

I am extremely pleased with the tenor of the debate tonight with respect to the Supreme Court. This issue is important, and all of the candidates should be asked to weigh in. Again, with some hesitation, I humbly suggest that our Op-Ed affected the tenor of the debate.

I will be discussing this topic with the New Jersey and the Chicago Lawyers Chapters of the Federalist Society next month. If you are interested in inviting me to speak, please drop me a line.

Disclosure: I have advised the Rand Paul campaign.