There are a host of challenges before incoming President Trump and a GOP Congress. Repealing ObamaCare, confirming Trump’s key cabinet appointments (beginning with attorney general nominee Jeff Sessions), revoking unconstitutional and unconscionable executive orders, and repealing job-killing regulations are all high on that list.
But nothing - nothing - is more important than the president’s selection of a nominee to replace Antonin Scalia. And this is where “We the People” come in.
The president will need our help if an outstanding nominee is to take his (generic use) seat on the bench. This is for the simple reason that the better the nominee is, the louder and more vitriolic will be the response of liberals.
In fact, the best way to tell if Trump has picked a winner is to get a decibel count on the screeching from the left. The higher the reading, the better the pick.
This doesn’t mean we automatically and blindly support any nominee Trump picks. We have to do our vetting as citizens just as Congress does. Trump has already posted a list of around 20 possible Supreme Court nominees who have passed muster with noted conservative organizations like the Federalist Society and the Heritage Foundation.
But not every name on that list is problem-free. William Pryor, for instance, is highly rated by many conservatives, but has done problematic things in the past on the federal bench. For instance, he was highly critical of Judge Roy Moore’s decision to post the Ten Commandments in the Alabama Supreme Court building, revealing that Judge Pryor has a defective understanding of the First Amendment (religious liberty), the Tenth Amendment (states’ rights), and the indispensable role of the Decalogue in shaping American jurisprudence.
(It’s worth noting in passing that anyone on Trump’s list is light years better than any possible Hillary Clinton pick. Every single day we have reason to be grateful that the American people did not choose her to be our next president.)
Scalia, in one sense, is irreplaceable. He was a once-in-a-generation jurist of towering intellectual abilities. But it is certainly possible to replace him with a justice who has the same commitment Scalia had to applying the Constitution as written, the Constitution given to us by the Founders, rather than the one mangled out of recognition by decades of renegade judicial activism.
So we must first carefully scrutinize Trump’s pick to replace Scalia. We simply cannot afford to put on the bench a man (generic use) who looks conservative and sounds conservative and then folds like a cheap Bedouin tent in a stiff desert breeze as Justice Roberts did on ObamaCare. If Trump makes a bad pick, then we have to fight Trump. If he makes a good pick, then we have to fight everybody else.
Once we are satisfied with Trump’s pick, we must bombard the members of the Senate Judiciary Committee with supportive phone calls. Their phone lines must melt from the heat we generate. We will be up against determined Democratic opposition, adversaries who will fight a good pick as if their survival depends on it, for indeed it might. We have to be more determined, more vocal, and more persistent than they are.
And we must never forget that we are also up against the same GOP establishment - both on the Judiciary Committee and in the Senate itself - which has frustrated the living daylights out of us for the last six years. These stodgy and timid GOPers are going to have to be besieged by us average American citizens with a tsunami of appeals to ignore the nattering nabobs of negativism and just do the right thing.
The Democrats may well filibuster Trump’s first nominee. The current version of the filibuster is a fake filibuster, because it doesn’t actually require anybody to do any talking or debating whatsoever. But it still takes 60 votes to break. The Republicans, even if they all stick together, only have 52 votes.
If the Democrats do take the calculated risk of filibustering Trump’s first (or second, or third) nominee, then we must overwhelm Senate Republicans with urgent appeals to nuke the filibuster and blow it into a million tiny little shards. They can end the Mickey Mouse fake filibuster by a simple majority vote, and they should do so forthwith. Harry Reid and the Democrats already nuked the filibuster in 2014 for all nominees below the Supreme Court level. Good for the goose, good for the gander.
The Democrats will try to Bork Trump’s best nominees. Robert Bork, a Reagan nominee, was demonized, vilified, and excoriated, the victim of one of the worst assassinations of character in American political history. He would have been a second Scalia. But President Reagan blinked and gave us Anthony Kennedy, a reed blowing in the breeze and the swing vote in two of the worst Supreme Court rulings in history, the Lawrence v. Texas ruling on homosexuality and the Obergefell ruling on same-sex marriage.
We must not allow the Democrats to Bork the next outstanding Supreme Court nominee. America cannot afford another Anthony Kennedy.
If Trump brings forward an outstanding nominee, he will certainly need our help. He can determine the course of the Supreme Court for the next three decades, but he can’t do it without us. Will we be ready?