Mychal Massie, one of the Worldnetdaily’s worst columnists (and imagine the competition for that title), has a column about how important it is for the next president, in his view, to be a Real True Conservative because they’ll likely have several Supreme Court appointments to make. Most of it is nonsense.
Based on age alone, one of the primary areas of concern is that the person elected president in 2016 will potentially have at least four Supreme Court justices to replace. Two of the potential four are liberals, so a Democrat president would simply be replacing liberals with liberals, ergo, it would be a wash. But of the other two, the one is a solid constructionist, and the other is a swing vote who has, in recent years, ruled based on constructionism enough times that we should be concerned if a Democratic president replaces him.
There is no such thing as a “constructionist” in this context. There are those who call themselves “strict constructionists,” but that’s mostly a nonsense phrase invented to make it sound as though they have a completely objective means of interpreting the Constitution. It’s a lot like a Biblical literalist who pretends that he doesn’t interpret at all, just discovers the inherent meaning in the Bible. It’s a pose, not a serious position.
Even when we were actually able to trust Republican presidents to be conservatives, their best judicial judgment more often than we care to think came up lacking. Republican President Eisenhower lamented, “I made two mistakes, and both of them are sitting on the Supreme Court.” He was referring to Earl Warren and William Brennan Jr.
Dr. Thomas Sowell wrote in 2007, “It is understandable that liberal [Democratic] presidents, beginning with Franklin D. Roosevelt, loaded the Supreme Court with liberal, [Democratic] justices. … What is far harder to understand is how a whole succession of conservative Republican presidents – Nixon, Ford, Reagan, and Bush 41 – managed to appoint so many liberals to the Supreme Court.” (“High Court and Low Politics: Part II,” Creators Syndicate)
And while I argue it is a giant leap on any quantifiable level to consider Gerald Ford a conservative, President Reagan’s conservative bona fides are unimpeachable, and yet he nominated Justice Sandra Day O’Connor (the quota queen who was so far to the left that she could straddle the Pacific with one foot standing on California) to the high court – even after he was warned she was a grave mistake as a nominee.President Nixon’s fourth-rate stupidity pursuant to the Watergate break-in does nothing to diminish his conservative bona fides, even if his race-based affirmative action legislation should. But as Dr. Sowell also points out: “President Nixon appointed Harry Blackmun, who created a ‘constitutional right’ to an abortion out of thin air, just as previous liberal justices had created all sorts of constitutional rights out of thin air for criminals, vagrants, and others.”…
It does conservatism no good to elect a Mitt Romney, John McCain, or Jeb Bush type. The 2016 election will place in office a person with the potential to change the face of SCOTUS for many decades to come.
His concerns are unwarranted. His most recent example of a justice nominated by a Republican who became a liberal justice on the court is from nearly 35 years ago. None of the five justices appointed since 1986 could possibly be called a liberal. This is not by accident. Conservatives have expended enormous effort to make sure this doesn’t happen again by building a “farm team” of judges and legal scholars who are committed to the cause. That was the whole point of creating the Federalist Society and it has been very successful.
Any Republican in the White House, no matter how liberal Massie might think they are, is going to be highly constrained by the conservative legal interest groups. Both parties have long lists of potential nominees and they have been thoroughly vetted. It is from those lists that a nominee is picked. John Roberts and Samuel Alito are textbook examples of this, conservatives who came up in the movement with impeccable credentials and resumes. That doesn’t mean a judge won’t evolve at all once given a lifetime appointment, but the chances of another David Souter or Harry Blackmun are far less now than they were 30 years ago.