[PoliticalForum] The Ideal Trump Supreme Court Pick: An Originalist Who Isn't A Fan Of Stare Decisis
NOV 18, 2016
The Ideal Trump Supreme Court Pick: An Originalist Who Isn't A Fan Of Stare Decisis
George Leef ,
Following Donald Trump’s election, disappointed Democrats fired off salvoes of red hot rhetoric. Among them was Senator Jeff Merkley of Oregon. He was upset that the empty seat on the Supreme Court would not now be filled by a “liberal,” as he and many others had assumed. Merkley railed that the seat had been “stolen” by the delaying tactics of the Republican controlled Senate.
Merkley’s rant, including the almost inevitable swipe at the Koch brothers (who were not Trump supporters by the way) is the kind of silly stuff that angry people are prone to uttering. It’s simply not true that the Senate has a legal obligation to vote on every nominee for the Court and the fact that Judge Merrick Garland was not voted on in no way (as Merkley declares) “delegitimizes any nominee that Trump might put forward.”
Cato Institute legal scholar Roger Pilon states the law plainly, writing here, “If the Senate fails to act, it simply falls to the Senate in the next Congress to take up the matter.”
That is precisely what will happen early next year. Earlier this year, Trump released a list of eleven potential Supreme Court nominees, later adding ten more names. He has said he will definitely choose his first nominee from those individuals. They are all known as conservative in outlook, but the vetting should go much deeper into their judicial philosophy.
In his November 17th Wall Street Journal article, Georgetown University law professor Randy Barnett points out that there should be two crucial desiderata for Trump’s Supreme Court nominations. One is whether the individual adheres to an Originalist view of the Constitution. That is to say, trying to find the meaning of our basic law by asking what the drafters of the articles and amendments intended.
That is the most obvious fault line between “liberal” and “conservative” jurists. The former often ignore original intent in favor of a “living Constitution” approach that yields the results they favor. All of the people on Trump’s announced list are there because they have shown their preference for Originalism.
But Originalism shouldn’t be enough, Barnett argues. Trump’s team should also look for a nominee who isn’t wedded to the legal concept known as stare decisis, which means “let the decision stand.” Judges who follow that maxim are not inclined to overturn precedents. While there is much to be said for stare decisis in most fields of the law – stability and predictability are important after all – that isn’t the case when it comes to constitutional rights. Erroneous decisions of the past should be reexamined whenever called into question.
Judges who blindly adhere to stare decisis help to cement in place the vast federal administrative and regulatory state that often sacrifices individual rights on the altar of collectivist and authoritarian policies.
http://www.forbes.com/sites/georgeleef/2016/11/18/the-ideal-trump-supreme-court-pick-an-originalist-who-isnt-a-fan-of-stare-decisis/#7c7894c22f13 --
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