Republicans debated on the eve of Constitution Day, and did our founding document more justice than usual. The Republican debate on CNN was full of impressive performances by nearly all the candidates—and most who addressed the Constitution did so in a less clichéd way than they typically do.
Candidates regularly use old, tired, meaningless refrains. They won’t nominate a judge who legislates from the bench… or one who isn’t pro-life… or one who’s liberal. We’ve heard all of that before, and by now many of us know it means nothing.
Professors Randy Barnett and Josh Blackman recently wrote a cover piece for The Weekly Standard Magazine. The advice within should be heeded by all 2016ers—and all who want judges who act and judge within the constraints of the Constitution.
Barnett and Blackman warn, “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.”
They’re right.
Barnett and Blackman note that in NFIB v. Sebelius (the Obamacare case), “After finding the law Congress wrote was unconstitutional, the [Chief Justice Roberts] then employed a ‘saving construction’ to rewrite the mandate so he could uphold it as a tax. This he did in the name of judicial restraint and deference to Congress.” In other words, judges can, and regularly do, “legislate from the bench” in the name of “judicial restraint.”
When you simply ask for a judge who believes in judicial restraint, you often get one who defers to majority rule or the legislative branch—not the Constitution. We’ve seen all too much of this with Justice Roberts. Republicans need to ensure they nominate judges whose only goal is to determine whether or not laws pass muster—not whether or not they are liked by the people, the legislature, or a party. None of those groups regularly pause and ask “wait, is this Constitutional?” which is the reason we have a judiciary. This is especially true of the legislature and the executive branches, where power-hungry politicians seek to maximize their powers beyond the bounds of the Constitution. That’s why we have judges—to tell them “no,” when they exceed their powers. It’s simple: if an act is unconstitutional, they must be stricken. If constitutional, upheld.
Barnett and Blackman implore the rejection of “clichéd calls for ‘judicial restraint.’”
No, Barnett and Blackman did not write this after the GOP debate. They wrote it before, because candidates’ Supreme Court talk is predictable.
That said, while Governor Bush did talk about concerns of legislating from the bench, he somewhat avoided clichés. “…[W]e need to make sure that we have justices that with a proven, experienced record of respect for upholding the Constitution.” This is better than his past talk, as it addresses upholding the Constitution, rather than “restraint” or “legislating from the bench,” but it’s clearly not a huge turnaround. This segment of the debate did not even include the word “restraint,” although the debate was sprinkled with the word.
It was unfortunate the question of Supreme Court nominees was not asked of who is easily the best person on stage to address it—Senator Rand Paul. Barnett and Blackman have advised Rand Paul, and it has served him well. Over the past few years, Paul’s talk about the Constitution has not been full of clichés, but a deep understanding of the Constitution and the separation of powers, and quotes from Barnett and other scholars like Timothy Sandefur or the Pacific Legal Foundation. All candidates should be seeking their advice and the advice of other similarly brilliant minds in the Federalist Society community.
I’d like to be proven wrong, and see Republicans step up and embrace nominating judges with proven commitment to upholding the Constitution—not policy preferences; judges who determine constitutionality—not political or popular favorability. The Constitution exists to keep government in check. Not to validate the whims of majorities nor to defer to the other branches. Let’s enforce it.
