Legislators with black robes

It’s all quite good for television ratings, but not so helpful for substance. Indeed, few voters bother with the complexities of legislative agendas or policy minutiae when new press secretaries are coming and going weekly. In the process, the next incarnation of Obamacare or the initial outline of a comprehensive tax overhaul receives second billing compared to what the president tweeted that morning – especially if the tweet contradicts what another administration spokesperson said the previous day.

Still, moving policy forward remains the most important measure of any administration. Here, legislative victories count, as do regulatory reforms that undo Obama era overreach.

But less attention is given to judicial wins – the all-important opinions issued by lifetime appointees in charge of our co-equal branch of government.

For immediate context, think about how a few thousand voters in Wisconsin, Pennsylvania, and Michigan made it possible for Neil Gorsuch (rather than Merrick Garland) to become the all-important “fifth vote” on an evenly divided Supreme Court. Now that I have your attention, give some thought to your views on the following questions:

• Whether a subdivision (or state) that refuses to cooperate with federal immigration officials in the identification and detention of those living here illegally should lose federal funding?

• Whether local boards of election can require everyone who shows up at a poll to produce some form of photo identification in order to cast a ballot?

• Whether a commercial baker should be required to cater a same-sex wedding (or a photographer required to take pictures at it) if the owner of the commercial establishment opposes same sex marriage on religious grounds?

• Whether contractors should be required to disclose allegations that it violated federal labor law when bidding on new federal contracts?

• Whether a pastor should be required to comply with a subpoena demanding copies of sermons (pertaining to controversial social issues) delivered to a congregation?

• Whether an Asian-American rock band that deliberately took its name from an insulting racial slur (“The Slants”) should be provided trademark protection from the U.S. Patent and Trademark Office?

These queries are a mere sampling of the divisive questions presented to our courts; each gut-wrenching issue is the focal point of a past or present lawsuit. A few have already gone all the way to the Supreme Court.

How courts decide these matters will be determined by an intelligent (at least on paper) group of individuals who have enjoyed similar legal training but who maintain deeply held differences when it comes to their job description. Here, the endless complexities of the law are broken down to a single question: Are you an “originalist” or “activist”? Alternatively, do you confine your legal opinions to the plain text of the law or do you take the law in the direction you believe it should go?

Those who subscribe to the former philosophy are buoyed by the willingness of the president and congressional Republicans to reverse unilaterally-imposed Obama era policy. Here, eight years of significant damage to our economy is in the process of being cleaned up by aggressive GOP-led regulatory teams (not bashful about utilizing the Congressional Review Act) that have achieved dramatic success in Mr. Trump’s first seven months. Some pundits believe congressional willingness to take down so much Obama Administration regulatory overreaching is a major reason for the run-up in the stock market since Election Day 2016. I don’t doubt it.

But using the rules to kill off burdensome regulations has its limits. And those limitations can be found in the 329 federal judges (including two Supreme Court Justices) appointed during the Obama years. These appointments mean Obama’s appointees will be engaging their inner activist selves for many years to come.

This should be a timely reminder to the “never-Trump” crowd. There are thousands of ambitious, uber-progressive young attorneys out there just waiting in the wings for the next Democratic president / Senate – just waiting for their opportunity to unleash another barrage of progressive ideas on our culture and country – if we let them.

It will not be easy for anyone to keep their eye on the ball through all the Trump-generated drama. The Democrats smell blood in the water. The aforementioned GOP detractors remain none too pleased. But it must be done. Confining the next generation of progressive activists to the minor leagues and out of our courtrooms is an imperative. Republicans and conservatives forget this notion at their own peril – the country forgets this notion at a major cost to an America (already) at risk.

Gov. Robert Ehrlich is a Washington Examiner columnist, partner at King & Spalding and author of three books, including the recently released Turning Point. He was governor of Maryland from 2003 – 2007.