Former SG Paul Clement to Speak at National Policy Conference on 4/27

The RNLA is pleased to announce that former U.S. Solicitor General Paul Clement will speak at the National Policy Conference on Friday, April 27.  Tickets and more information are available here.  Unlike previous years, walk-up registration will not be available this year.

Mr. Clement has had a distinguished career of public service and private practice, is one of the nation's foremost appellate and Supreme Court advocates, and is widely regarded as an example of a principled and ethical attorney, after he resigned from his law firm instead of abandoning an existing client when it was no longer politically popular.

He spoke to the RNLA at the National Policy Conference in 2016 on "Scalia and His Legacy on the Supreme Court," which was an excellent analysis of Justice Antonin Scalia's jurisprudence and his immense impact on the legal world and the Supreme Court.  Mr. Clement gave a poignant tribute to Justice Scalia's life, wit, and impact on legal interpretation at the Supreme Court Bar's memorial to the late Justice (beginning at 32:25):

The Justice had a transformative effect on the Supreme Court and the way it decides cases.  His impact on statutory construction, which is the bread and butter of what the Court does, was nothing short of Copernican, with the center of attention returned to the text.  He likewise championed a focus on the text and original public meaning of the Constitution, and he strove mightily to ensure that his methodology for interpreting both statutes and the Constitution produced predictable legal results even when they did not comport with his policy preferences.  His votes to vindicate the First Amendment rights of flag burners are famous examples. . . . 

Just as his opinions will continue to shape the way the law is understood, he will continue to shape the way briefs are written and the way advocates prepare for oral argument.  

This year, we will have a panel focusing in part on Justice Scalia's successor on the Court, Justice Neil Gorsuch.  We are honored for Mr. Clement to address the RNLA in two weeks, and we invite you to join us.

Destroying a Political Attack on Justice Scalia and Originalism

Ed Whelan, President of the Ethics and Public Policy Center, is the latest legal scholar to destroy the Democrat Party’s unofficial election law professor Rick Hasen. (See Professor Brad Smith's recent rebuke here.) The problem for Hasen is that he seems to have given up on efforts at scholarship and is focusing on advancing Democrat Party agenda and liberal political ideology. Hasen’s latest attack is on conservative icon, the deceased Justice Antonin Scalia.

Whelan obliterates Hasen’s arguments in three posts.  First, Whelan describes the absurdity in Hasen’s overall argument against the philosophy of originalism:

Scalia “wrote that his ideas could increase the legitimacy of judicial decision making, yet his attacks on his opponent may have undermined it.” On page 7, Hasen similarly asserts: “For someone who cared so much about the legitimacy of the Court, much of what he said about the work of other justices seemed aimed at delegitimizing them as judges.” 

There is no contradiction at all here. Scalia believed that the Court earns its legitimacy by soundly exercising reasoned judgment — and that it undermines its legitimacy by acting in an unprincipled manner. So it’s entirely consistent for him to discredit, or delegitimize, bad judging.

This should be obvious.  If it were true a Court has legitimacy simply because it makes decisions, then a Kangaroo Court of a third world dictator would have as much currency as the U.S. Supreme Court. 

Hasen also attacks Scalia for trying to trying to undermine American jurisprudence:

Hasen contends that Justice Scalia was “seeking to undermine common approaches to American jurisprudence with new and revamped theories of interpretation.” (P. x.) But unless we are to imagine that “American jurisprudence” began with the Warren Court, Hasen has things entirely backwards: Scalia was seeking to restore traditional methods of interpretation.   

Indeed, Hasen himself ends up obliquely confirming my point. On statutory interpretation, he initially acknowledges that Scalia’s textualism “hearkens back to ‘formalist’ judicial philosophy of eighteenth-century legal thinkers such as William Blackstone.” He then makes the odd claims that “[t]extualism is different” from Blackstone’s formalism and that “Scalian formalism [which Hasen equates with textualism] puts its faith not in an immutable law of nature but in linguistic analysis.” (Pp. 26-27.) So the reader is supposed to take from this passage that Blackstone wasn’t a textualist but instead somehow derived the meaning of texts from the “immutable law of nature.” Yet ten pages later, Hasen refers to “Blackstone’s notion of a statutory truth that can be ‘found’ by sufficiently careful textual analysis.” (P. 37 (emphasis added).) (I will not maintain that Blackstone’s textualism is in all respects identical to Scalia’s, but, as Hasen appears to concede, the two are much closer than Blackstone’s is to purposivism or pragmatism or Hasen’s other “more eclectic theories of interpretation.”)

Hasen not only defeats his own arguments in his book but also doesn't even properly read the specific cases for which he is attacking Justice Scalia. Whelan’s analysis exposes how in the second “Obamacare” dissent, Scalia answered in great detail Hasen’s alleged contradiction, which Hasen completely omitted.

Hasen’s primary claim is that Scalia’s dissent in the second Obamacare case, King v. Burwell (2015) — in which Scalia opined that the statutory phrase “Exchange established by the State” does not mean “Exchange established by the State or the Federal Government” — “was not mandated by his own methods of interpretation.” In support of his claim, Hasen spends some ten pages setting up Scalia’s brief separate opinion in Green v. Bock Laundry Machine Co. (1989). The question in that case was whether the term “defendant” in the then-existing version of Rule 609(a)(1) of the Federal Rules of Evidence applied to civil defendants as well as criminal defendants. In his separate opinion, Scalia observed that the text of Rule 609(a)(1), “if interpreted literally, produces an absurd, and perhaps unconstitutional, result,” and he concluded that, of the two alternatives available, interpreting “defendant” to mean “criminal defendant” would do “least violence to the text.”

Why, then, asks Hasen in a flurry of rhetorical questions, does Scalia adopt a “relentlessly literal reading” of “Exchange established by the State” in King v. Burwell? How is his position in King compatible with his position in Green? “[I]s it any less absurd to read a single clause [sic] in a twenty-seven-hundred-page law … to contain the seeds of [the law’s] own destruction?”   

Amazingly, Hasen nowhere informs his trusting readers that Scalia actually supplies an answer. In his dissent in King v. Burwell, Scalia writes (citations omitted; emphasis added):

Only when it is patently obvious to a reasonable reader that a drafting mistake has occurred may a court correct the mistake. The occurrence of a misprint may be apparent from the face of the law, as it is where the Affordable Care Act “creates three separate Section 1563s.” … The occurrence of a misprint may also be apparent because a provision decrees an absurd result — a consequence “so monstrous, that all mankind would, without hesitation, unite in rejecting the application.” But §36B does not come remotely close to satisfying that demanding standard. It is entirely plausible that tax credits were restricted to state Exchanges deliberately — for example, in order to encourage States to establish their own Exchanges. We therefore have no authority to dismiss the terms of the law as a drafting fumble.  

Let us not forget that the term “Exchange established by the State” appears twice in §36B and five more times in other parts of the Act that mention tax credits. What are the odds, do you think, that the same slip of the pen occurred in seven separate places? No provision of the Act — none at all — contradicts the limitation of tax credits to state Exchanges. And as I have already explained, uses of the term “Exchange established by the State” beyond the context of tax credits look anything but accidental. If there was a mistake here, context suggests it was a substantive mistake in designing this part of the law, not a technical mistake in transcribing it.

Hasen no doubt has earned his seat at a good table at liberal and Democrat Party dinners. However, Hasen’s book shows the very important difference between the political and politicians on one side and the rule of law and judges on the other. One is better off reading Whelan’s Scalia Speaks rather than Hasen’s Justice of Contradictions. 

The Supreme Court in Crisis: A Good Read, But No Crisis

RNLA Member Donald Daugherty recently conducted a book review published by the Federalist Society on American Justice 2017: The Supreme Court in Crisis by Kimberly Robinson.

Ms. Robinson's book offers a summary and background insight into the 2016 Term of the Supreme Court by describing various themes from the term, while highlighting various "crises" that allegedly arose--largely referencing the impact of an eight-person bench, with the absence of Justice Scalia for the majority of the term, prior to the swearing in of Justice Gorsuch.

Mr. Daugherty explains:

Robinson reviews controversial cases that the Court delayed deciding or sidestepped altogether. Most notable is Trinity Lutheran Church of Columbia v. Comer, for which certiorari was granted a month before Justice Scalia passed in February 2016, but oral argument not held until April 19, 2017—nine days after Neil Gorsuch was sworn in. Robinson also points to the Court declining to review cases involving changes to voting requirements in Texas and North Carolina in the wake of 2013’s Voting Rights Act decision, Shelby County v. Holder. Chief Justice Roberts took the unusual step of explaining why the Court denied certiorari in those cases, which Robinson interprets as protesting too much in anticipation of criticism that the Court was trying to avoid difficult decisions. . . 

Due in large part to its cautious approach, the 2016 Term was marked by an unusually high degree of consensus and a greater-than-usual number of unanimous decisions, with only two dissents read from the bench. Along with the absence of divisive, blockbuster cases, the relative consensus among the justices makes it hard to agree that the Supreme Court was in “crisis.”. . . The Court wisely and prudently chose to put off some of the biggest cases until it returned to full strength. This is not a weakness or shortcoming, as Robinson seem[s] to imply, but reflects a humility that is less often seen in the two political branches. Wisdom and prudence do not necessarily make for an interesting read, however, so the book instead repeatedly refers to various “crises.”. . .

Mr. Daugherty also explains that Robinson's book offers the insight that the U.S. Supreme Court operates in the current political climate, even if it chooses not to wield political power forcefully:

The book’s most interesting chapter is “Courting Politics,” which discusses the Roberts Court’s so-called “one last chance” doctrine for resolving tough constitutional issues on narrow grounds in order to avoid wreaking immediate, widespread havoc; in such decisions, the Court often warns in dicta that without some legislative or other non-judicial fix, the outcome could be different the next time it is faced with the issue. Robinson argues that decisions causing momentous, social disruption risk exposing the Court to criticism that it is merely another political actor. Beginning with Justice Owen Roberts “switch in time” that mooted FDR’s court-packing plan and ended the Lochner era, Robinson cites other possible examples of a politicized Court—Bush v. Gore, National Federation of Independent Business v. Sebelius, Obergefell v. Hodges, and Citizens United v. Federal Elections Commission. At the same time, although the Court is sometimes fairly accused of deciding issues better left to the political branches or the states, this was not a problem in the 2016 Term, and this chapter has little to do with the term specifically. Further emphasizing the anti-climactic nature of the term . . . .

Robinson's book, in closing, offers a preview of what to expect this year as the 2017 Term begins to wind down, but it contrasts one of her themes of the book. Mr. Daugherty notes:

[T]he final chapter’s title—“The Calm Before the Storm”—is at odds with Robinson’s contention that the Court was in crisis during the 2016 Term. Looking ahead, Robinson describes the many high profile cases currently before the Court. Besides Janus and challenges to the third version of the temporary travel ban, the Court is now considering important post-Obergefell issues arising under the First Amendment in Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, as well as the political blockbuster Gill v. Whitford, which could curb partisan gerrymandering and drastically change how states approach redistricting. Although there is no dispute that the 2017 Term will exceed its predecessor in excitement and controversy, however, Robinson succeeds in turning a sleepy term into an interesting read, even without any real crisis.

Of course, the RNLA will continue to highlight major cases of interest as they come down from now through June. Recently, we have highlighted a few cases we foresee as being highlights of the 2017 Term as well as the redistricting case (Gill v. Whitford) and the recent oral arguments of Janus (union dues v. free speech).

Reflections on Justice Scalia on the Two-Year Anniversary of His Death

Today marks two years since Justice Antonin Scalia unexpectedly passed from this Earth.  His impact on the legal world was immense, as he was instrumental in returning to a focus on a law's text.

Much could be and has been said about his jurisprudence, his writing style, his strong but friendly personality, the effort led by Senate leadership to allow the people to speak on his successor by keeping his seat open through the election, and how well Justice Gorsuch is living up to President Trump's promise to appoint a successor in the mold of Justice Scalia.  But today, we pause to remember the great man with a few reflections from those who knew him.

In The National Law Journal:

Kannon Shanmugam, former Scalia clerk and head of Williams & Connolly’s Supreme Court and appellate litigation practice: “Even two years on from his death, Justice Scalia remains a powerful influence on the court. His legacy lives on in the court’s approach to constitutional and statutory interpretation. While there are differences in approach among the court’s members, the court largely plays on the playing field that Justice Scalia established.”

Carrie Severino, chief counsel of the conservative Judicial Crisis Network: “There are so many ways in which Justice Scalia’s legacy lives on. He was a leading voice for taking the Constitution seriously that has already inspired generations of lawyers. And his compelling arguments and trenchant prose will continue to shape our approach to the law for generations to come. Justice Gorsuch himself is not only Scalia’s successor but also someone whose approach to the law was formed in a legal environment made possible by Scalia’s leadership on the court. Justice Scalia is sorely missed, but his influence is still very much alive.”  

And on Twitter:

Today is the second anniversary of Justice Antonin Scalia's death. May he rest in peace, may his wife and family continue to be comforted, and may his remarkable legacy continue to grow.

— Ed Whelan (@EdWhelanEPPC) February 13, 2018

Ed Whelan co-edited Scalia Speaks with Justice Scalia's son, Christopher.  It is a fascinating collection of the Justice's speeches, which he delivered to a wide range of audiences on a wide range of topics, and which give insight into the intellectual and philosophical force that was Justice Scalia.  The RNLA has autographed copies of Scalia Speaks available for members to purchase on the Members Only section of the www.rnla.org website, and members can listen to a members-only conference call with Ed Whelan as well.

Rest in peace, Justice Scalia.

On President Reagan's Birthday - His Views on the Judiciary

Today would have been President Ronald Reagan's 107th birthday.  To honor his legacy and the immense impact he had on our nation's courts through his judicial nominees, here are some of his views on the judiciary, the rule of law, and the Constitution.

President Reagan, Speech at the Investiture of Supreme Court Chief Justice William H. Rehnquist and Associate Justice Antonin Scalia, White House, September 26, 1986:

[The Founders] settled on a judiciary that would be independent and strong, but one whose power would also, they believed, be confined within the boundaries of a written Constitution and laws. In the convention and during the debates on ratification, some said that there was a danger of the courts making laws rather than interpreting them. The framers of our Constitution believed, however, that the judiciary they envisioned would be "the least dangerous'' branch of the Government, because, as Alexander Hamilton wrote in the Federalist Papers, it had "neither force nor will, but merely judgment.'' The judicial branch interprets the laws, while the power to make and execute those laws is balanced in the two elected branches. And this was one thing that Americans of all persuasions supported. . . . 

Hamilton, Jefferson, and all the Founding Fathers recognized that the Constitution is the supreme and ultimate expression of the will of the American people. They saw that no one in office could remain above it, if freedom were to survive through the ages. They understood that, in the words of James Madison, if "the sense in which the Constitution was accepted and ratified by the nation is not the guide to expounding it, there can be no security for a faithful exercise of its powers.'' The Founding Fathers were clear on this issue. For them, the question involved in judicial restraint was not -- as it is not -- will we have liberal or conservative courts? They knew that the courts, like the Constitution itself, must not be liberal or conservative. The question was and is, will we have government by the people? And this is why the principle of judicial restraint has had an honored place in our tradition. Progressive, as well as conservative, judges have insisted on its importance -- Justice Holmes, for example, and Justice Felix Frankfurter, who once said, "The highest exercise of judicial dutyis to subordinate one's personal pulls and one's private views to the law.'' 

Chief Justice Rehnquist and Justice Scalia have demonstrated in their opinions that they stand with Holmes and Frankfurter on this question. I nominated them with this principle very much in mind. And Chief Justice Burger, in his opinions, was also a champion of restraint. All three men understand that the Founding Fathers designed a system of checks and balances, and of limited government, because they knew that the great preserver of our freedoms would never be the courts or either of the other branches alone. It would always be the totality of our constitutional system, with no one part getting the upper hand. And that's why the judiciary must be independent. And that is why it must exercise restraint.

President Reagan, Radio Address to the Nation on the Supreme Court Nomination of Robert H. Bork, October 10, 1987 (the day after Judge Bork withdrew his nomination to the Supreme Court):

Former Chief Justice Warren Burger, too, called the tactics used against Judge Bork disinformation but the real test is to the principles that were established by the Founding Fathers when they created the Constitution. The Washington Post columnist David Broder recently wrote: "To subject judges and judicial appointees to propaganda torture tests does terrible damage to the underlying values of this democracy and the safeguards of our freedoms." But despite these courageous words from a few individuals, many here in Washington closed their eyes to the wrong being done to the judicial process. . . . 

During his confirmation hearings, Judge Bork had given us all a national lesson in our legal tradition and the importance of judicial restraint-the belief of our Founding Fathers that it was the role of the judge to interpret the law, not to preempt the rights of the people and their legislatures by making the law. So, I could understand then why Judge Bork might choose to withdraw and simply return to the Court of Appeals. I wish you could have been there as Judge Bork explained his decision—as he looked me in the eye and said we must do not what was right or easy, for himself, but what was right for the country. . . . 

Judge Bork said a critical principle was at stake. He explained it this way, and again I quote: "Federal judges are not appointed to decide cases according to the latest opinion polls. They are appointed to decide cases impartially, according to law. But when judicial nominees are assessed and treated like political candidates the effect will be to chill the climate in which judicial deliberations take place, to erode public confidence in the impartiality of our judges, and to endanger the independence of the judiciary." . . . 

I agree with Judge Bork that there are no illusions. Our judges should be faithful to the written Constitution, the bedrock of our liberties. Those selected for the Supreme Court must be aware of all points of view and their decisions based on government by the people.

Former Attorney General Ed Meese, "Reagan Upheld the Rule of Law," February 3, 2011:

As he was running for president, Ronald Reagan raised the issue of “judicial activism” among the federal courts. He noted that too many judges were substituting their own personal views, policy preferences and political ideas for what the Constitution and the statutes enacted by Congress actually provided. Many legal scholars and knowledgeable observers were concerned that we were no longer a government of laws, but a government where the result depended on who the judge might be. This was particularly true in such cases as religious liberty, freedom of speech, economic affairs and criminal justice. These were matters that most affected the personal lives of American citizens. 

Most important to the president was the fact that judicial activism violated the basic constitutional principles of limited government and of checks and balances. When the federal courts turned from interpreting the law to making the law or improperly interfered with the actions of the executive branch, they usurped the powers of the other two branches. 

Ronald Reagan was committed to restoring the concept of constitutional fidelity. Judges, he maintained, should base their decisions on the original meaning of the Constitution and of the federal statutes. He explained that the Founding Fathers had given careful thought to the role of the federal judiciary and thought that it should be independent and strong, but with its powers confined within the boundaries of a written Constitution and laws. 

He considered this principle, known as judicial restraint, critical to the fair administration of justice. He said that the courts, like the Constitution itself, must not be liberal or conservative, but solely focused on following the law and preserving justice.

Senator Orrin Hatch, Speech to the RNLA, May 6, 2011:

Make no mistake, such things as moral reflections, personal impressions, or theoretical opinions are not enough to protect our liberty.  Judges who take an oath to support and defend the Constitution, but who believe that they determine its meaning, are really swearing to support and defend themselves.  Judges, and not the Constitution, become the supreme law of the land if they control what the Constitution really is. 

President Reagan sought to reassert that the Constitution embodies inescapable and enduring mandates established by the people, and to appoint judges who believed the same.   His predecessor, Jimmy Carter, is the only full-term President in American history not to appoint a Supreme Court Justice, which perhaps is proof that there is indeed a God who is looking out for us after all.  After spending four years on the Judiciary Committee examining President Carter’s lower court nominees, I spoke loudly in the 1980 campaign against what I called avant garde liberal activists who will legislate from the bench.  President Reagan was elected promising to appoint a very different kind of judge.

Happy birthday, President Reagan.  We are still reaping the legacy of your deep respect for the rule of law and the written Constitution as reflected in the judges you nominated to the federal bench.  And the principles you outlined are once again being honored and followed in the White House as President Trump seeks to nominate judges committed to the rule of law, not of unelected judges.

On Anniversary of Scalia's Death, Gorsuch Is His True Successor

On this day last year, Justice Antonin Scalia died unexpectedly, devastating the legal world and presenting a vacant Supreme Court seat as an issue in the 2016 presidential election.  When President Trump nominated Judge Neil Gorsuch to Justice Scalia's seat on the Supreme Court, he kept his campaign promise of nominating someone in the mold of Justice Scalia:

If he is confirmed by the Senate, Gorsuch, 49, will represent the first generation of Supreme Court justices to have been influenced by Scalia's rulings, writings and teachings while still in law school. He was chosen by President Trump in part because he is in the mold of Scalia, as lawyers who served as law clerks to both judges attest. 

"Though the critics are loud and the temptations to join them may be many, mark me down ... as a believer that the traditional account of the judicial role Justice Scalia defended will endure," Gorsuch said in a speech last year at Case Western Reserve University School of Law, delivered shortly after the justice's death at 79. . . . 

Having clerked for both, [Matthew] Owens says Gorsuch will "remind everyone of Justice Scalia for a long time to come" because of his determination to call cases as he sees them, regardless of his personal views. 

But despite their similarities, he says of Gorsuch, "I hope that he'll be seen as a successor, and not just a copy." 

Three former Gorsuch and Scalia clerks wrote today of how Judge Gorsuch is the "perfect replacement" for Justice Scalia and shares his overall judicial philosophy:

Although no one can replace the Justice, we can think of no one more worthy of his seat than Judge Gorsuch. He is a brilliant thinker, a fair and independent judge and a clear and effective communicator of important ideas. . . . 

Judge Gorsuch's opinions reflect the principle Justice Scalia spent his career defending: that in a democracy, the people's elected representatives, not judges, get to decide what laws we should have. In a lecture last year, Judge Gorsuch paid tribute to that "great project of Justice Scalia's career," reminding us of "the differences between judges and legislators" and of judges' duty "to apply the law as it is . . . not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best." Justice Scalia couldn't have said it better himself. . . . 

It is no surprise, then, that Judge Gorsuch has gained a wide reputation as a principled and deep-thinking judge. On occasion that has even led him to disagree with the late justice. For example, Justice Scalia was a longtime defender of Supreme Court precedents that require courts to defer to federal agencies about the meaning of statutes passed by Congress. Judge Gorsuch, however, recently called for a rethinking of those cases – for a reason Justice Scalia would have found familiar. Judge Gorsuch objected that judicial deference to executive agencies is "more than a little difficult to square with the Constitution of the framers' design" because it effectively allows executive bureaucracies to "swallow huge amounts of core judicial and legislative power," which are supposed to be located in separate branches of government.  

Justice Scalia was a remarkable man, legal thinker, and justice, and he can never truly be replaced.  But in nominating Judge Gorsuch, President Trump has come as close as possible to nominating someone who shares Justice Scalia's understanding of the rule of law, the role of the courts, and the importance of the text in the interpretation of the Constitution and statutes.

Trump Releases Additional Outstanding Names for Supreme Court Short List

Today, Donald Trump released the rest of his short list of potential nominees to fill Justice Scalia's position on the Supreme Court, supplementing the excellent list he released in May and stating that the well-qualified state and federal court judges are the only people that President Trump would consider to nominate to the Supreme Court:

These individuals were selected, first and foremost, based on constitutional principles, with input from respected conservative leaders. 

Mr. Trump stated, “We have a very clear choice in this election. The freedoms we cherish and the constitutional values and principles our country was founded on are in jeopardy. The responsibility is greater than ever to protect and uphold these freedoms and I will appoint justices, who like Justice Scalia, will protect our liberty with the highest regard for the Constitution. This list is definitive and I will choose only from it in picking future Justices of the United States Supreme Court. I would like to thank the Federalist Society, The Heritage Foundation and the many other individuals who helped in composing this list of twenty-one highly respected people who are the kind of scholars that we need to preserve the very core of our country, and make it greater than ever before.” 

The newest release adds ten judges to the list:

Keith Blackwell is a justice of the Supreme Court of Georgia.  

Charles Canady is a justice of the Supreme Court of Florida.  

Neil Gorsuch is a judge of the United States Court of Appeals for the Tenth Circuit.  

Mike Lee is the Junior U.S. Senator from Utah.  

Edward Mansfield is a justice of the Iowa Supreme Court.  

Federico Moreno is a judge of the United States District Court for the Southern District of Florida.  

Margaret A. Ryan has been a judge of the U.S. Court of Appeals for the Armed Forces since 2006.  

Amul Thapar is a judge of the U.S. District Court for the Eastern District of Kentucky. 

Timothy Tymkovich is the chief judge of the United States Court of Appeals for the Tenth Circuit. 

Robert Young is the chief justice of the Supreme Court of Michigan. 

This list of 21 principled jurists should give conservatives the confidence to vote for Donald Trump.  The next President will have the ability to transform the judiciary, and the judges on Trump's short list would be justices who respect the rule of law and the role of the judiciary, in the tradition of Justice Scalia.

Republican Senators Stand Strong in Refusing to Hold Hearings for Scalia's Replacement

Republican Senators hold their ground as Obama and the left seek to shift the balance of the Supreme Court. Despite the hypocrisy of both President Obama's and Senate Minority Leader Harry Reid's positions, they have criticized Republican Senators' refusal to confirm a nominee in this election year. 

A shift to the left has already begun in our nation’s highest Court. Given the Court’s recent conduct absent Scalia, it has become abundantly clear that the Court cannot afford another liberal justice. We need Republican Senators to stand strong and refuse to back down. Senate Judiciary Committee Chairman Chuck Grassley is doing just that:

“It isn’t any different if the President of the United States notifies Congress well in advanced of a piece of legislation that he’s going to veto it,” Grassley said, suggesting that many of his Iowa constituents have expressed anger at the Supreme Court itself for taking an activist role in the law. 

“Whether it’s today or tomorrow or whether it’s for the next seven or eight months, this is a very important debate that we ought to have about the constitution and about not only who’s going to be a replacement for Justice Scalia but about the role of the Supreme Court,” Grassley added. “At the grassroots of America, there’s a real feeling of ‘Is the Supreme Court doing what the Constitution requires?'” 

It is uncontested that the President has the right to nominate a candidate; however, the Senate also has the right to choose whether or not to hold a hearing on his nomination. We should support the actions of our Senators who are standing up for what is right and refusing to bend to the strong arm tactics of the Democrats. It is clear to many that the President is focused on dealing a parting blow to conservatism. After eight years of a failed administration, many feel President Obama has done enough. Justice Scalia spent the entirety of his Supreme Court career protecting the Constitution and the rights therein. Scalia’s replacement is an important decision that should be left until after the people have spoken this November.

RNLA Conference Call on Scalia and Confirmation Process Tomorrow

The RNLA is hosting a members-only conference call tomorrow at 12:30 EST with Ed Whelan, President of the Ethics and Public Policy Center, to discuss Justice Antonin Scalia’s legacy and the importance of waiting until the next President is elected to replace him on the Supreme Court.

In addition to being a leader in the intellectual debate on the Senate confirmation process, Ed is increasingly taking on the important role of defending Justice Scalia’s character and jurisprudence against baseless, posthumous attacks by the left: here, here, and here.

As always, the RNLA thanks Republican Senators for their leadership and steadfast devotion to principle on the question of confirming a successor to Justice Scalia.  As Senator Chuck Grassley noted earlier this week:

The American people deserve the opportunity during this election year to weigh in on whether the next Justice should apply the text and original meaning of the Constitution, or, alternatively, his or her own life experiences to changing times to advance his or her own sense of what would be “just decisions and fair outcomes.” 

Senate Republicans will ensure the American people are not denied this unique and historic opportunity.

March 4 - Nationwide Conference Call on Justice Scalia's Legacy with Ed Whelan

On March 4, RNLA is hosting a nationwide conference call on Justice Scalia's legacy with Ed Whelan, President of the Ethics and Public Policy Center and former law clerk to Justice Scalia.  Ed will discuss the importance of Justice Scalia's jurisprudence and the importance of waiting for the next President to appoint his successor.  He will also take questions.

Shortly after Justice Scalia's sudden passing, Ed wrote:

It’s been more than 80 years since a Supreme Court justice was confirmed in an election year to a vacancy that arose that year, and there has never been an election-year confirmation that would so dramatically alter the ideological composition of the Court. 

. . . Senate Republicans would be grossly irresponsible to allow President Obama, in the last months of his presidency, to cement a liberal majority that will wreak havoc on the Constitution. Let the people decide in November who will select the next justice.

Through a series of tweets, Ed has reiterated the importance of Senate Republicans holding firm on not holding a hearing for any person President Obama nominates to fill Justice Scalia's seat on the Court.

Ed is also an expert on the judicial confirmation process and the Senate's role in that process:

The only real question is over how the Senate can and should exercise its advice-and-consent role. And the clear answer to that twofold question is that the Senate has the plenary power to exercise its advice-and-consent role however it wishes (as Democrats have long recognized . . . ) and that the only constraints are political, not constitutional, in nature.

The RNLA invites all current members to join us on Friday, March 4, at 12:30 PM EST to hear Ed Whelan's thoughts on Justice Scalia's legacy and the importance of the current vacancy on the Supreme Court.

Supreme Court Nominations in Election Years: Part 1

The RNLA mourns the sudden passing of Justice Antonin Scalia, along with the rest of the country.  His passing leaves a vacancy on the Supreme Court, and though Justice Scalia can never truly be replaced, a justice to succeed him will be nominated by the President and confirmed by the Senate.  The justice to succeed Justice Scalia should not be nominated by this President and confirmed by this Senate, however.

In modern American history, a Supreme Court vacancy that arises in an election year is not filled until after the election.  As Shannen Coffin explains:

[T]here simply is no precedent in modern times for filling a vacancy that arises in an election year.  You have to go back to Benjamin Cardozo in 1932 to find a similar circumstance.  Democrats have pointed to the appointment of Anthony M. Kennedy in 1988, but that vacancy arose in June 1987, the summer before the election, and only remained open because Democrats had already blocked one of the most qualified nominees in our history from the Court (Robert Bork).

Ed Whelan notes the importance of this particular vacancy, given Justice Scalia's intellectual force and analytical consistency:

[T]here has never been an election-year confirmation that would so dramatically alter the ideological composition of the Court. . . . Senate Republicans would be grossly irresponsible to allow President Obama, in the last months of his presidency, to cement a liberal majority that will wreak havoc on the Constitution. Let the people decide in November who will select the next justice.

It is only proper for the American people to have an opportunity to exert a measure of control on an institution that is normally not open to the influence of the public will.  The people are not able to select the nominee, but they should be able to select the person who selects the nominee.

Republican Leadership Reacts to Selecting a Successor After Scalia's Passing

While the RNLA mourns the loss of Justice Antonin Scalia, the importance of finding the right successor, especially in a presidential election year is paramount.  In a press release yesterday, Senate Majority Leader Mitch McConnell stated:

“The American people should have a voice in the selection of their next Supreme Court Justice.  Therefore, this vacancy should not be filled until we have a new president.”

Echoing Leader McConnell’s sentiments, Senate Judiciary Chairman Chuck Grassley stated:

“The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year.  Given the huge divide in the country, and the fact that this President, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

The RNLA thanks Leader McConnell and Chairman Grassley for their leadership as we not only mourn the loss of a champion of the Constitution, but for setting the course for selecting a successor after the election to defer to the American people.