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Policy: Law

Resetting federal courts on a more neutral path requires GOP wins in 2014 and 2016

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Opinion,Hugh Hewitt,Columnists,Judicial Branch,Supreme Court,2014 Elections,2016 Elections,Campaigns,Filibuster,Law

Conservatives who worry about the U.S. Supreme Court shouldn't worry about if and when Justice Ruth Bader Ginsburg steps down and how the GOP will respond to that vacancy, but rather when Justices Antonin Scalia or Anthony Kennedy hang up their robes and call it quits.

Scalia and Kennedy are both 78, and while it is hard to imagine either of them laying down their office under President Obama it is also hard to imagine both of them finishing the next 30 months and an additional eight years of President Hillary Clinton beyond that.

Which is why the capture of the Senate in November and or the White House two years later is of such crucial importance to the future rule of law in the Republic.

Senate Majority Leader Harry Reid has essentially destroyed the guard rails put around the judiciary by obliterating the filibuster. Thus the academic left in America's elite law schools have a wide open path to the appellate courts and from there to the highest court — unless a new GOP Senate majority simply shuts down all judicial confirmations for the duration of Obama's term. Such a bold action should be taken publicly and defended at length by Mitch McConnell and all the men and women who want to lead the GOP in the two decades ahead.

The explanation for the Republican retaliation for the Democrats' busting of the judicial filibuster has to be patiently and carefully laid out, as well as the intent to keep the Reid "confirmation-by-simple-majority" rule in effect through the first two years of the new president taking office in 2017, with the doors to the courts wide open for a Republican president and firmly shut for Clinton should she triumph. (It is hard to imagine any Democrat other than Clinton triumphing in November 2016 given the wreckage Obama has made of everything he has touched). The key point is that Reid's partisanship with the courts has to be repaid with interest, and defended as very strong medicine to deter future malevolent wreckers.

When a severe penalty has been imposed on the radical Reid camp in the Senate and their supporters in the Democratic Party, then and only then can the GOP rebuild the filibuster rule with the assistance of responsible Democrats who understand the long-term health of the country requires genuine checks and balances, not rampant majoritarianism.

To repeat: The period of total blockade should be four years if Clinton wins. If a Republican wins the White House the blockade should be replaced by a two-year fast-tracking of a new Republican president's hopefully committed originalist nominees to the federal courts at every level.

Either sequence will reset the courts by the end of 2018 in a roughly neutral place and allow a fresh start by responsible senators crafting a new super-majority rule for the confirmation of judges and justices, a rule that is less susceptible to the abuses invented by the late Sen. Ted Kennedy and perfected by Reid and Sen. Patrick Leahy, D-Vt., but one requiring judicial nominees to come from the center of the American legal mainstream, not just from elite and left-dominated law faculties.

If this project is undertaken, the mainstream media will denounce the GOP for "politicizing" the courts when in fact the Republicans would be attempting to restore order and seriousness to the judicial confirmation process. The media generally does not understand that the spiral begun by Kennedy with his despicable attack on the late Judge Robert Bork has to be brought to a full stop and replaced with a recognition that the courts truly are different and not merely an extension of the endless domestic political wars.

If by contrast the Senate remains under Reid's control and Clinton replaces Obama at 1600 Pennsylvania all of above will be moot. The court will be packed with ideologues of the sort that we have grown accustomed to on the left. Where that would take America is impossible to imagine.

Hugh Hewitt is a nationally syndicated talk radio host, law professor at Chapman University's Fowler School of Law, and author, most recently of The Happiest Life. He posts daily at HughHewitt.com and is on Twitter @hughhewitt.
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