Many voters who said they had reservations about supporting Donald Trump for president cited the U.S. Supreme Court as the No. 1 reason they chose him over Democratic Party nominee Hillary Clinton.
If their desire was to see the court filled with justices who share the judicial philosophy of the late Antonin Scalia, they must be pleased with the record so far of Justice Neil Gorsuch and the pledge the Trump appointee made at a dinner Thursday night in honor of Scalia.
“Tonight I can report that a person can be both a publicly committed originalist and textualist and be confirmed to the Supreme Court of the United States,” Gorsuch said at the dinner, held by the Federalist Society at Union Station in Washington, D.C., the Washington Examiner reported.
“Originalism has regained its place at the table … textualism has triumphed … and neither one is going anywhere on my watch.”
During his remarks, Gorsuch equated criticism of the conservative Federalist Society’s influence to the “red scare” and praised the leadership of Federalist Society Executive Vice President Leonard Leo, who serves as Trump’s adviser on judicial nominations.
Gorsuch addressed criticism that he is too vocal during oral arguments by taking a poll of the audience’s view of his performance.
The audience signaled with applause that it wants him to continue.
“Maybe these questions are pretty popular after all,” Gorsuch said.
Trump’s appointment of Gorsuch is among at least 150 achievements recorded in WND’s new list of accomplishments since Trump took office in January that form the basis for WND’s Thank Trump Card Campaign. The campaign, with a dedicated website, ThankTrump.us, allows people to send a personalized note of thanks to the president.
The Gorsuch appointment could be the first of several during Trump’s term in office.
A writer for the left-wing website Alternet said during the 2016 election campaign that it’s likely the new president would nominate not only Scalia’s replacement but also an additional three new justices, arguing that since 1971, the average age of retirement for a Supreme Court justice has been just under 79 years.
Ruth Bader Ginsburg is 84, Anthony Kennedy is 81 and Stephen Breyer is 79
“The new justices will set the direction of the Supreme Court and the values that guide it for the next generation. Scalia, after all, was on the court for 30 years before he died,” wrote David Morris.
The Trump administration announced Friday is has added five new names to its list of possible Supreme Court nominees “in the mold of” Gorsuch, bringing the total to 25.
“The president remains deeply committed to identifying and selecting outstanding jurists in the mold of Justice Gorsuch,” the White House said. “These additions, like those on the original list released more than a year ago, were selected with input from respected conservative leaders.”
The new names are Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit, Britt C. Grant of the Supreme Court of Georgia, Brett M. Kavanaugh of the United States Court of Appeals for the District of Columbia Circuit, Kevin C. Newsom of Appeals Court for the Eleventh Circuit and Patrick Wyrick of the Supreme Court of Oklahoma.
Barrett was grilled in September during confirmation hearings for her current judicial post by Democratic Sens. Dianne Feinstein of California and Dick Durbin of Illinois regarding her Roman Catholic beliefs on abortion. The now embattled Sen. Al Franken, D-Minn., accused this week of sexual harassment, charged Barrett is unfit for the court because she gave a speech to a “hate group,” referring to the religious liberty law firm Alliance Defending Freedom as such.
History of Republican high-court whiffs
Gorsuch’s affirmation of his fealty to originalism is significant because of the mixed record of Republican high-court appointments historically.
Republican President Dwight D. Eisenhower is famously reported to have said the two biggest mistakes of his presidency were appointing Earl Warren and William Brennan, leaders of the aggressively liberal court of the 1960s. The selection of David Souter by President George H.W. Bush is another example.
On the current court, the four Democratic-appointed justices — Ginsburg, Breyer, Elena Kagan and Sonia Sotomayor — have been consistently liberal on the bench.
However, of Ronald Reagan’s three appointees — Sandra Day O’Connor, Scalia and Kennedy — only Scalia turned out to be a consistent conservative. George H.W. Bush scored with Clarence Thomas while getting burned by Souter. George W. Bush appointed Samuel A. Alito Jr. and John Roberts, who are part of the conservative wing of the court. But Roberts famously broke with the conservatives on the Obamacare mandate, casting the deciding vote to uphold the largest expansion of federal power in decades.
Marc Thiessen, former chief speechwriter for George W. Bush, asked rhetorically in a 2012 Washington Post column why the Democratic record on Supreme Court appointments is so consistent while the Republican record is so mixed.
He said that for one, the legal and political culture pushes the court to the left.
“Conservatives are pariahs if they vote against the left on certain issues. But if they cross over to vote with the left, they are hailed as statesmen. There is no penalty for voting left, but there is for voting right,” Thiessen wrote.
Another factor, he said, is that liberal Supreme Court nominees “can tell you precisely how they stand on key issues and still get confirmed.”
In her 1993 confirmation hearings, Ginsburg, appointed by Bill Clinton, declared the right to abortion “central to a woman’s life, to her dignity” and was confirmed 96 to 3.
Breyer, another Clinton appointee, declared abortion a “basic right” and was confirmed 87 to 9.
“Imagine if a conservative nominee said the opposite? His or her confirmation battle would be a nuclear war,” Thiessen said.
During his confirmation hearings, Thiessen pointed out Roberts famously compared the role of a judge to that of a baseball umpire whose job “is to call balls and strikes.”
George W. Bush, he said, took that as a promise that “he’s not going to legislate from the bench.”
But when faced with a decision that could sink Obamacare, Roberts, Thiessen said, engaged in “the kind of sophistry we expect from liberals,” effectively redrafting the statute to make the mandate a tax in order to declare it constitutional.
In dissent, Justices Scalia, Kennedy, Thomas and Alito wrote: “To say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. … This carries verbal wizardry too far, deep into the forbidden land of the sophists.”
Thiessen observed that the left “sees the law as a tool of social justice — so they start with the desired outcome and then come up with legal reasoning to justify it.”
“That is what Roberts did: He decided he wanted to uphold Obamacare and rewrote the statute to fit that outcome.”