A Clinton win would ensure the most liberal Supreme Court in 80 years
The next president’s picks mean the difference between democracy and tyranny
By Senator Orrin Hatch
The outcome of this November’s election will determine the direction of the Supreme Court for a generation. The next president will have at least one, and as many as four or five, vacancies to fill. There is no more important issue in this election than the Supreme Court.
This is because Supreme Court justices do more than just decide legal cases. To a great extent, they shape the kind of country we have.
Judges come in two basic varieties — those who follow the law as enacted by the people’s representatives, and those who effectively rewrite the law to match their own personal preferences. The first type of judge seeks to implement the law as passed by Congress or state legislatures. The second kind of judge seeks to control the law by making the words in statutes and the Constitution mean what the judge wants them to mean.
The first kind of judge allows the people and their elected representatives to run the country and define our culture, while the second kind of judge prefers to take that role for himself. In this sense, the second type of judge acts as a sort of philosopher-king, deciding what sorts of laws and activities will be allowed, regardless of whether anything in the Constitution or existing law actually addresses the question. Supreme Court decisions restricting religious freedom, greatly expanding federal power, and legalizing abortion and same-sex marriage nationwide offer examples of the second type of judge in action.
The most critical issue in this year’s presidential election is which kind of judge each candidate is likely to appoint.
Donald Trump has said he would appoint the first kind of judge, one who follows the law and doesn’t seek to inject his or her personal views into policy debates. He’s pointed to the late Justice Antonin Scalia as the kind of judge he will select, one committed to faithfully implementing the laws Congress has actually passed. Mr. Trump has backed up that promise with a list of federal and state court judges who, he said, are “representative of the kind of constitutional principles I value.” That list was well received by those of us in the conservative legal movement who believe judges must enforce the law as written.
Hillary Clinton’s record, by contrast, shows that she would appoint a very different kind of judge. When she was a senator, she voted 24 times to filibuster President George W. Bush’s judicial nominees, including current Supreme Court Justice Samuel Alito, an outstanding jurist. In fact, a comprehensive statistical analysis, based on a widely used measure of judicial ideology, concluded that if Hillary Clinton is elected, “the court may quickly become the most liberal it’s been in at least 80 years.”
No one today can predict with certainty who the next president will appoint to the Supreme Court. But here’s what we do know: The federal judiciary is more powerful than ever, and the Supreme Court will continue to have an enormous impact on our country and on our liberties. The next president will tip the court’s balance, installing a court majority that is either anchored in the text of our statutes and Constitution, or adrift on a sea of “undiscovered” rights and liberal policy ambitions.
We know one other important thing: While the Supreme Court gets much of the attention, the lower federal courts have the last word in the vast majority of cases. During his time in office, President Obama has appointed nearly 40 percent of the entire judiciary. These judges will serve an average of more than 20 years, with the power either to follow or rewrite the law.
A president’s lower court judges frequently serve as a “farm team” for future Supreme Court nominations. Last month, one popular legal blog offered a list of potential Hillary Clinton Supreme Court nominees. Each of the federal judges on the list was either nominated or appointed by President Obama.
Columnist Thomas Sowell hit the nail on the head when he said, “The issue is judges that stick to the law versus judges who ignore the law. That is a huge distinction. It is the difference between living in a self-governing democracy and living under tyrants on the bench.”
Through his or her appointments, the next president will determine whether the federal judiciary respects its proper, limited role in our self-governing democracy, or whether we continue to slide ever further toward judicial tyranny. There is no more important issue in this election.
• Orrin Hatch, a Utah Republican, is president pro tempore of the U.S. Senate.