President Trump has had tremendous luck with Supreme Court vacancies and still somehow has very little understanding of the job his nominees will hopefully be doing.
While Trump heaped praise on Anthony Kennedy during a recent Fox News interview with Maria Bartiromo, the president pointed out that the retiring justice “ended up being a little more neutral than a lot of people would have preferred — but a lot of people preferred that he was.”
This, of course, is ridiculous. Preferences don’t matter because neutrality is precisely the only thing that actually does matter. Justices read and interpret law. Justices aren’t supposed to bring their biases to bear by making law from the bench.
Until recently, that was one of the longest running conservative gripes against the judiciary. But Trump can be forgiven for having a murky idea of the job of a Supreme Court justice.
It isn’t even clear Kennedy understood the job description. It was that justice, after all, who saved the indefensible Roe v. Wade with his opinion in Planned Parenthood v. Casey then packaged that new liberty with some meaningless cliches about defining “one’s own concept of existence.”
[6 rulings that could be overturned by a post-Kennedy Supreme Court]
It isn’t exactly popular for justices to be neutral either. When Sen. Bob Casey voted against Justice Neil Gorsuch, the Pennsylvania Democrat said he voted no because his “opinions often reflect a commitment to satisfy his judicial philosophy more than to grapple with the complex circumstances faced by ordinary Americans.” In other words, Gorsuch was too faithful to the original, textual meaning of the law. Borrowing from Trump, Casey might have said that Gorsuch was a little too neutral.
Looking at Trump’s list of potential nominees, they all seem to share these much-maligned traits of neutrality or “judicial philosophy” over desired outcomes.
