Supreme Court appointments have been politically charged decisions ever since John Adams appointed his Federalist ally John Marshall as chief justice just before the Anti-Federalist Thomas Jefferson was to succeed Adams as president. So it was only a matter of time before the issue came up in the 2016 presidential campaign.
Voting experts say Supreme Court issues play little role in swaying undecided voters, but do help political parties play to their respective bases. The base-appealing strategy naturally leads candidates away from the political center, but the GOP hopefuls who discussed Supreme Court appointments in the CNN-hosted debate for “major” candidates last week [Sept. 16] took hard turns to the right in their remarks.
Ironically, the most sensible remarks came from two of the Republican hopefuls in the second-tier debate. South Carolina senator Lindsey Graham and former Pennsylvania senator Rick Santorum both stood up for Chief Justice John G. Roberts Jr. despite cries for his scalp from conservatives for voting twice in 2012 and again in June to uphold President Obama’s health care reform. Graham called Roberts “one of the most qualified men” to come before the Senate, while Santorum said Roberts has “a long, good record” despite some bad decisions.
In the main debate, however, Jeb Bush threw Roberts under the bus even though it was Jeb’s brother George W. who appointed Roberts. Bush said that Roberts “has made some really good decisions,” but he then suggested the appointment was a mistake because Roberts “did not have a proven, extensive record.” Bush wrapped up by declaring, “You can’t do it the politically expedient way anymore.”
Texas senator Ted Cruz pointedly criticized both of the Bush presidents for picking unproven Supreme Court nominees over judges with a demonstrated commitment to right-wing ideology on the bench. In Cruz’s telling, Bush41 chose the newbie federal judge David H. Souter in 1990 over Edith Jones, who had already proven her conservative credentials after five years on the Fifth U.S. Circuit Court of Appeals. Then in 2005 Bush43 passed over another proven conservative judge, Michael Luttig, in favor of Roberts, who had only two years of D.C. Circuit decisions to vet for ideological inconstancy.
Cruz, who supported Roberts’ confirmation while serving as Texas's solicitor general at the time, now labels the appointment “a mistake,” just as Souter’s appointment had been earlier. “You know, we're frustrated as conservatives,” Cruz said. “We keep winning elections, and then we don't get the outcome we want.” Fact-check: Democratic candidates have won the popular vote in five of the last six presidential elections.
In Cruz’s counterhistorical scenario, the Jones and Luttig appointments would have changed the results not only in the Obamacare cases but also in this year’s same-sex marriage ruling. Yes, Roberts dissented in the marriage case, but apparently Cruz assumes that Jones, still on the bench at age 66, would have been the fifth vote for the conservatives in the case: no Souter retirement and thus no appointment of Sonia Sotomayor to succeed him.
Cruz may well be right in imagining how Jones and Luttig would have voted in those cases, but it should be noted that they would have been bucking the consensus position taken by lower court judges in the cases. Out of four federal courts of appeals to rule on the Affordable Care Act, only one held the law unconstitutional. Out of more than 60 federal judges to rule in marriage cases after December 2013, only six voted to uphold same-sex marriage bans, including the two Sixth Circuit judges whose decision the Supreme Court overturned.
On marriage, public opinion is now also clearly in favor of equal rights for same-sex couples; by now, public opinion also favors the Affordable Care Act though narrowly. So Cruz is arguing in favor of appointing justices outside both the legal and political mainstream. President Reagan tried that with Robert Bork in 1987; the Senate emphatically rejected him: 58-42.
Former Arkansas governor Mike Huckabee took the Republicans’ colloquy one step further out of the mainstream last week by listing a series of “litmus tests” that he would impose on possible Supreme Court nominees. Among others, Huckabee said he would require a nominee to pledge support for recognizing a fetus as a person. Fetal personhood proposals have been defeated at the polls and rejected in the courts.
For good measure, Huckabee also questioned the Supreme Court’s role in the constitutional system. “If the court can just make a decision and we just all surrender to it, we have what Jefferson said was judicial tyranny,” Huckabee said.
In the earlier, second-tier debate, Louisiana governor Bobby Jindal had included Anthony Kennedy along with Roberts and Souter as mistakes by GOP presidents. He vowed, if elected, to appoint “conservative judges, judges that are going to be pro-life, judges that are going to follow the Constitution . . . .”
In his Senate confirmation hearing, Roberts studiously avoided ideological labels and used his famous umpire metaphor to depict a judge’s role as neutrality. Umpires get booed from both sides, just as Robert has been. But among Republicans who would be president, the model nominee now appears to be somehow who will hew 100 percent to an ideological line that, not coincidentally, correlates directly with the GOP’s out-of-the-mainstream political views.
Correction: This column originally stated that Cruz voted against Roberts' confirmation; he was elected to the Senate in 2012 and began serving in 2013. H/T: Richard Samp of Washington Legal Foundation, who pointed out the error.