President Trump will announce his Supreme Court nominee tonight at 9 p.m. ET. For good or not-so-good, it will chart the course of the Court for the next three decades.
He has the opportunity to return the Court to its constitutional limitations, where it APPLIES the Constitution (rather than interpreting it, rewriting it, and mangling it in the process), and settles CASES for the plaintiffs before them - you know, like actual courts do - rather than acting as super-legislators for the entire country.
From the screeching we are hearing from regressives, it is plain that upholding the flawed Roe opinion is their holy grail. They care about virtually nothing else, except squashing religious liberty wherever they can.
And surely the left is correct that abortion is, in fact, the pre-eminent issue. A judge who is right about Roe and about life is going to be right about everything else. If he (generic use) is wrong about Roe he will be wrong about a lot of other things because he will fancy himself a legislator rather than a jurist.
“Life” is the very first of the inalienable rights identified in the Declaration of Independence as gifts from the Creator. It is, therefore, the very first right the American government has the sacred and solemn responsibility to “secure” for the American people. And of course, it’s evident on its face that no one is in a position to enjoy any other of the full panoply of his God-given rights unless he has first of all been born.
As Antonin Scalia pointed out, there is no right to abortion spelled out anywhere in the Constitution. You can scour the document from its first word to its last and you will find nary a mention of abortion anywhere. You will, however, find numerous references to “life” with the unambiguous declaration in the 5th and 14th Amendments that no one’s life can be taken from him without “due process.” No baby in the womb ever gets that.
Since no power to regulate abortion is granted by the Constitution to the central government, according to the Tenth Amendment it is an issue that is reserved to the states. Both Roe and the 1992 Casey case should be overturned and the issue returned to the states, where it belonged until 1973.
Thus the first question we must be satisfied about is a potential nominee’s view of the life issue. There is little doubt that Amy Coney Barrett is the most unambiguously pro-life candidate on the entire list of 25. And she is unquestionably an originalist, which means her jurisprudence on this issue will be guided by the actual text of the Constitution rather than some airy-fairy penumbras and words about defining the mystery of life.
She has been abundantly and correctly clear that precedent is not sacred and sacrosanct. If a precedent is contrary to the Constitution as written, it needs to be chucked. Said Barrett, “I tend to agree with those who say that a justice’s duty is to the Constitution and that is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it...Because there is a great deal of precedent for overruling precedent, a justice who votes to do so engages in a practice that the system itself has judged to be legitimate rather than lawless.”
Questions remain about Brett Kavanaugh, who appears to be the president’s second choice. He gave a disconcerting opinion on whether an illegal alien teenager apprehended at the border has a right to an abortion, and another opinion gave Justice Roberts the legal reasoning he used to uphold ObamaCare. He should be left on the appeals court, where Amy Barrett and Neil Gorsuch would be in a position to correct any mistakes he might make.
Raymond Kethledge and Thomas Hardiman have a limited paper trail. It is for this reason that the Swamp - led by Swamp King Mitch McConnell - wants one of them to be the nominee since they would be “easier to confirm.” Well, that’s exactly the reasoning that gave us the disastrous David Souter and led President Reagan to appoint the even more disastrous Anthony Kennedy after Robert Bork had been savaged.
So Amy Barrett is clearly the best choice Trump could make. You can always tell who’s getting the conservative job done by the ones at whom the left aims its heaviest guns. They have taken Scott Pruitt out, they are trying to do the same to Jim Jordan, and almost all their judicial fire has been aimed at Barrett. The LA Times is on record singling her out as the worst judge on Trump’s list. Almost none of the regressive fire is aimed at any other potential nominee, all of which means Barrett is the one they fear the most.
If Trump appoints anyone else he will either anger his base or disappoint them, neither or which augurs well for 2020. If he appoints Barrett, on the other hand, he will lock down his second term.
Shakespeare put it this way (emphasis mine):
There is a tide in the affairs of men, Which taken at the flood, leads on to fortune. Omitted, all the voyage of their life is bound in shallows and in miseries. On such a full sea are we now afloat. And we must take the current when it serves, or lose our ventures.
Our president is now, this day, afloat on such a sea. Let’s hope and pray he knows how to read the waves.