Defend Our Laws: Justice Matters

Published August 25, 2011

Public Discourse: Ethics, Law and the Common Good


In developing their positions on Supreme Court appointments and the Department of Justice, presidential candidates should 1) welcome the battle over the Supreme Court, 2) determine to fight hard for high-quality justices, 3) frame the argument for why abortion policy should be restored to the democratic processes, 4) support the Defense of Marriage Act, and 5) commit to select senior legal leaders who fully embrace their goals and priorities.

In light of the power that the modern Supreme Court wields in shaping—or misshaping—how the Constitution is interpreted, a president's Supreme Court appointments are among his most important and enduring legacies. The president elected in 2012 can reasonably be expected to have the opportunity to fill one or two vacancies on the Court. How the Republican presidential candidates would approach this opportunity therefore provides an important measure of their fitness for office.

The Department of Justice also plays significant roles on constitutional issues. Among other things, DOJ decides whether and how to defend federal laws against constitutional challenge, and it advises the president on constitutional issues and the selection of Supreme Court justices and lower-court nominees. A presidential candidate's vision of how DOJ would operate under his direction provides valuable insights.

As conservatives begin sorting through the field of Republican presidential candidates, I offer here five pieces of advice that I believe ought to guide the candidates in forming their positions on selecting Supreme Court justices and directing the Department of Justice.

1. Recognize that the battle over the proper role of the Supreme Court is a political winner for conservatives.

As this mock memo by a former Obama DOJ judge-picker nicely illustrates, liberals lament that “conservatives have succeeded in defining the debate [over judges]: a judge is either a judicial activist or a conservative.” Conservative discourse about the proper role of judges has “tremendous public appeal,” whereas a nominee's candid embrace of liberal “living Constitution” rhetoric will seriously jeopardize his nomination.

This political triumph of judicial conservatism explains, for example, why then-Supreme Court nominee Sonia Sotomayor, to the disgust of many on the Left, tried to disguise herself as a judicial conservative during her confirmation hearing.

Although the Left consoles itself with the notion that its problem lies in its messaging rather than in the substance of its positions, the reality is that conservative discourse is succeeding on its merits. As large swaths of the American public (especially those not suffering from the detriment of a modern legal miseducation) understand, the Constitution, within broad bounds, creates a system of representative government in which most issues, large and small, are left to American citizens to work out through their legislators at the state and national levels. To be sure, the judiciary has an essential role in enforcing those rights, and limits on governmental power, that are in the Constitution. But the unconstrained role of the judiciary that the Left advocates cannot be reconciled with core American principles.

The compelling common-sense appeal of originalism has so devastated proponents of the “living Constitution” that they have largely abandoned the term and have tried instead to rebrand their freewheeling approach or even to recast themselves as originalists. The rhetorical triumph of judicial restraint over liberal judicial activism has likewise led many liberals to reposition themselves opportunistically as champions of judicial restraint (and to charge conservative justices with the sin of activism). And Chief Justice Roberts's umpire analogy in defense of judicial impartiality has so routed President Obama's notoriously lawless empathy standard that Obama's own Supreme Court nominees have repudiated that standard.

Among the positions embraced by the Left that are politically toxic is its unprincipled resort to contemporary foreign and international legal materials to redefine the meaning of provisions of our Constitution. That position is part of the Left's broader transnationalist project to deprive American citizens of their powers of representative government by selectively imposing on them the favored policies of foreign and international elites. Sotomayor's brazenly deceptive testimony is but the starkest of many efforts by Obama nominees to conceal their positions on this issue.

2. Make selection and confirmation of high-quality justices a top priority.

A Republican president elected in 2012 should be emboldened by the political triumph of judicial conservatism, especially if (as would be likely in the event of a Republican presidential victory) Republicans regain control of the Senate. Senate Democrats may well threaten to filibuster any conservative Supreme Court nominee. But if the White House genuinely has the will to wage a vigorous and extended campaign on behalf of a high-quality nominee, it should be able to defeat a filibuster.

Do not underestimate the danger, however, that timid political advisers to the president will try to avoid a fight in order to preserve capital for other battles. Any “compromise” candidate who would be acceptable to leading Senate Democrats would be a rank surrender. To avoid being undermined from within, the president needs to make clear from the outset that filling Supreme Court vacancies with outstanding conservative justices is one of his three or four highest priorities.

Methods of judicial appointment and configurations of party power vary considerably from state to state, but any Republican presidential candidate who has made judicial appointments as governor should be expected to show how his record indicates that he would fight hard as president to appoint high-quality Supreme Court justices.

3. Frame the argument for why the constitutional authority to make abortion policy should be restored to the democratic processes.

If a Republican president elected in 2012 has the opportunity to replace Justice Ginsburg (now 78), Justice Kennedy (75), or Justice Breyer (73) with an
excellent conservative justice, there is a genuine prospect that the Court would have the five votes needed to overturn Roe v.Wade and restore abortion policy to its proper place in the democratic processes in the states. Given nearly four decades of pervasive media misrepresentations of what Roe held and what overturning it would mean, it is not surprising that many people initially are hostile to its being overturned. But there is ample reason to believe that some elementary education on the matter would dramatically increase public support for overturning Roe.

This is not an issue that Republican presidential candidates can duck. Nor, given the striking increase in pro-life sentiment, should they want to. They instead need to seize the opportunity to frame the issue in a manner that has broad appeal to Americans with diverse positions on abortion policy:

  • They should educate the public that Roe imposes a radical regime of unrestricted abortion, for any reason, all the way up to viability—and, under the predominant reading of obtuse language in Roe's companion case, Doe v. Bolton, essentially unrestricted even in the period from viability until birth.
  • They should explain how Roe has poisoned American politics and culture for nearly four decades by preventing Americans from working together, through an ongoing process of peaceful and vigorous persuasion, to establish and revise the policies on abortion governing their respective states.
  • They should discuss how Roe's manifest defects have been harshly criticized even by abortion supporters (see point 2 of my 2005 Senate testimony).
  • They should point out that Roe has fueled endless litigation in which pro-abortion extremists challenge modest abortion-related measures that state legislators have enacted and that are overwhelmingly favored by the public—provisions, for example, that seek to ensure informed consent and parental involvement for minors and bar atrocities like partial-birth abortion.

4. Strongly support the Defense of Marriage Act and oppose same-sex marriage.

The Obama administration's sabotage and, more recently, formal abandonment of its duty to defend the federal Defense of Marriage Act reflects a sharp and shameful departure from the DOJ's traditional practices. Republican presidential candidates should declare that their DOJwill vigorously defend DOMA and will intervene in other litigation to oppose the judicial invention of a federal constitutional right to same-sex marriage.

DOMA was approved by overwhelming majorities in both Houses of Congress in 1996 and was signed into law by President Clinton. DOMA's broad bipartisan support—including from liberal Democrats like Joe Biden, Patrick Leahy, Charles Schumer, and Dick Durbin—refutes the empty revisionist claim that DOMA somehow embodies an irrational bigotry against same-sex couples.

DOMA does two things. First, it reaffirms thehistoric understanding of what the term “marriage” means in provisions of federal law—the legal union of a man and a woman as husband and wife. It is a profound confusion to argue, as some do, that values of federalism somehow require the federal government to accept any state's redefinition of marriage in determining what “marriage” means in provisions of federal law.

Second, in a genuine protection of values of federalism, DOMA safeguards the prerogatives of each state to choose not to treat as a marriage a same-sex union recognized in another state. It thus helps ensure that one state does not effectively impose same-sex marriage on another state. At the same time, it leaves the citizens of every state free to decide whether or not to redefine their marriage laws.

Beyond defending DOMA, a president should declare his support for a federal marriage amendment that would preserve—and, for some states, restore—the traditional definition of marriage in the states.

Our predecessors understood what too many Americans today have forgotten or never learned—namely, that the marriage practices a society endorses have real-world consequences that extend far beyond the individuals who seek to marry, and that strengthen or undermine the broader culture. That understanding of marriage underlay the 19th-century effort to combat polygamy, which was regarded as inimical to democracy. That is why Congress, in its separate enabling acts for the admission of several states, conditioned their admission on each state's inclusion of anti-polygamy provisions in its constitution. That history disproves the claim that how states define marriage has been a matter left entirely to the states.

The acceptance of same-sex marriage would permanently sever the inherent link between marriage and responsible procreation and child-rearing. The more confusion there is about the mission of marriage, the less effective marriage will be in accomplishing its mission. And the countless millions of victims of a collapsed marriage culture—children born into unstable or nonexistent families—will continue to pile up, with all the attendant disastrous social consequences.

5. Select White House advisers and DOJ leaders who embrace your goals and priorities.

Personnel is indeed policy. It is essential that a Republican president select senior White House advisers (including chief of staff and White House counsel) and leaders for the DOJ—especially for the positions of Attorney General and Solicitor General—who are deeply committed to his goals and priorities on selection of Supreme Court justices and on the operation of DOJ.

* * *

By his oath of office, the president commits that he “will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States.” What a president means by this oath depends on his own understanding of what the Constitution means. In setting forth their positions on selecting Supreme Court justices and directing the DOJ, the Republican presidential candidates can offer valuable insights into how well they understand the Constitution and how well-prepared they are to exercise presidential authority.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO's Bench Memos blog.

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