President Donald Trump is expected to make his first nomination to the Supreme Court tonight. The vacancy on the high court began almost one year ago when Associate Justice Antonin Scalia died unexpectedly. Sen. Majority Leader Mitch McConnell decided to refuse even to grant a hearing to Judge Merrick Garland whom President Obama appointed to fill the seat. So, I should not be surprised if the Democrats in the Senate decide it is time for a little payback.
I would also be disappointed. I know, I know: It is not fair that the Democrats abide by the norms of our democracy and the Republicans flout or frustrate them when it suits their purpose. But, setting aside the truly brutal wrong that was done to Judge Garland, I like the idea of President Trump having to cope with someone of his own choosing who has no need to bow to his wishes and who, if the nominee sticks to his or her principles, will only highlight the contrast between conservative beliefs and Trump's mélange of ideological commitments.
Nor do I fear a principled conservative jurist as much as I fear a certain kind of liberal jurist on the high court. Liberal jurisprudence, especially as it is espoused in the nation's elite law schools, is a mess. A friend recently participated in a panel discussion at Yale Law School and listened as an Ivy League law professor explained that reproductive rights were more important than the rights enumerated in the Bill of Rights. All of the authors of this ridiculous report from the ACLU, which argued Catholic hospitals should be compelled to perform abortions, attended elite law schools: New York University, Yale, Northeastern. There are some fine professors of law, to be sure, at every law school, but the Ivy League and other top-tier law schools have their share of cranks from the left. Apart from the distorted focus on reproductive rights, liberal jurisprudence, like liberal politics, tends to set the laudable value of equality above all other values necessary to a vibrant democracy, turning equality into a steamroller that runs over legislative responsibility, vibrant civil society, conscience rights, and much else.
The problem is to find a principled conservative jurist. In one of the Supreme Court's most consequential rulings in recent years, only Chief Justice John Roberts upheld the traditional conservative legal stance of deferring to the legislature in joining with his liberal colleagues to uphold the Affordable Care Act (aka Obamacare). I wish he had stuck with the liberals on the issue of compelling states to participate in the Medicaid expansion prescribed by the Affordable Care Act, but his reasons for joining the conservative justices on that issue reflected a reasonable assertion of another conservative principle: States have rights too. But, let's hope Roberts is consistent in his defense of federalism when challenges to Trump's effort to deny federal funding to sanctuary cities reaches the high court.
Scalia, of course, was quite capable of overriding certain conservative principles when he thought others were at stake. His commitment to the First Amendment's defense of freedom of speech often put him at odds with other conservative jurists. "On matters involving the First Amendment, Scalia advocated a broad scope for freedom of speech," David Dorsen recently argued in The Washington Post. "Notwithstanding Trump's argument that flag-burners should be subject to criminal prosecution, Scalia joined the opinion of liberal justice William Brennan striking down laws making flag desecration a crime as unconstitutional. He wrote his own opinion striking down a law prohibiting cross-burning that intimidated African Americans. Scalia's First Amendment prohibited making distinctions based on the content of a statement." Scalia similarly took the "liberal" position on issues pertaining to the rights of criminal defendants.
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It is interesting that one of the names being floated this past week, Judge Neil Gorsuch, currently a judge on the 10th Circuit Court of Appeals, is being attacked from the right. The website Phyllis Schlafly Eagles claims he is "not pro-life" and puts those words in bold. I have my own objections to Gorsuch: An essay he wrote at NationalReview.com stated that "American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education." The article was published back in 2005, but even then I think it was clear that conservatives were as willing to head to the courts to resolve social policy in their favor as liberals, or at least the "addiction" was not inherently a liberal one.
Gorsuch is a Protestant and, for the first time in history, the current court has no Protestants on it, all Roman Catholics and Jews. I asked legal scholar Rick Garnett of the University of Notre Dame Law School about that. "I don't think the question to ask is whether nominees' Catholicism is what makes them 'conservative'; my interpretation is that the number of Catholics on the 'conservative' side of the Court reflects the fact that we had three Republican presidents, who got to pick seven justices among them, who were expected by their constituencies to pick someone who was both (a) well qualified and (b) skeptical of Roe," Garnett explains. "The reality is that there simply weren't that many well credentialed, elite lawyers who fit that bill who were not Catholic, because 'evangelicals' had not been going to the elite law schools in the '60s and '70s."
It is remarkable that Catholics attain such disproportionate influence in both legal and political circles, and on both sides of the aisle. I credit the Catholic intellectual tradition with providing those who are familiar with it, even just a bit, with an appreciation for the integration of knowledge at a time when most academic disciplines are highly balkanized. Insofar as politics requires persuasion, the ability to relate discrete facts one to another is often more important than extensive knowledge of particular discrete facts.
Garnett also thinks that Trump's selection will be, unlike everything else he has done so far, a predictable one. "Any of the people who are being discussed would be a conventional conservative pick," he tells me. "That is, unlike some of Trump's picks, there is nothing remarkable or unexpected about the short list we're hearing about. They are all qualified, credentialed, and experienced. Each is conservative and each is 'mainstream,' if that term is used correctly. Each is someone who almost certainly would have been considered by a President Jeb Bush or a President Mitt Romney."
That doesn't mean those of us on the Catholic left will be happy. I fear greatly that the Friedrichs case will now be resolved in a way that decimates unions. (Liberals are not the only ones who can undervalue the importance of civil society.) I fear that corporations will continue to obtain rulings that favor their already significant power, able to hire the best lawyers, and mount litigation with their deep pockets, and a conservative justice will likely see no value in leveling the playing field. I fear that necessary government regulations of the environment will be overturned. There is much to fear.
But, a principled conservative also poses a challenge to Mr. Trump, who is not known for his principles. He won't be able to blame Obama or the Democrats when that justice rules against the administration. Trump will be made to confront a limit on his power, something that I suspect he will not like one little bit. Conservatives will have to choose: Stick by the principles articulated by the new justice and risk the ire of the president, or abandon the principles and stay in lockstep with Trump. I confess the sin of delectatio morosa in advance when I contemplate the scenario.
It would be foolish to predict anything President Trump is going to do.
[Michael Sean Winters is NCR Washington columnist and a visiting fellow at Catholic University's Institute for Policy Research and Catholic Studies.]