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Steven Mosher Steven Mosher

Opinion,

The Donald proposes a stellar list of Supremes

Steven Mosher Steven Mosher

Editor’s note: The following article, along with another article published today opposing Trump’s candidacy, is published in the spirit of encouraging discussion on this important issue. LifeSiteNews aims to report the facts on candidates for elected office as they impact life, family, and the moral renewal of culture, but we do not endorse specific candidates. As such, this article does not necessarily represent LifeSiteNews’ views or those of its editors.

May 31, 2016 (LifeSiteNews) – Everyone in the pro-life movement knows that abortion was imposed on America not by the U.S. Congress but by the nine judges of the Supreme Court. 

And they are equally aware that, if that injustice is ever to be undone, if Roe v. Wade is ever to be overturned, it will take the votes of at least five of those justices.

With two, maybe three, of the sitting justices ready to retire over the next few years, the November election will determine the direction of the Supreme Court for many years to come.

The death of Justice Antonin Scalia has not just left the Court short one member, it has created an intellectual void that either Hillary Clinton or Donald Trump will fill sometime next year.

Clinton’s judicial preferences are well known. She does not have to release a list of her potential nominees to the Supreme Court for us to know that her picks will be judicial activists of the worst kind, eager to write their prejudices into law.

Trump, on the other hand, is a blank slate, which is why it is so important that he recently released a list of 11 people who he would nominate to the Supreme Court to take Justice Scalia’s seat.

I think that the list is striking not only in the caliber of the people on it—more about this in a moment—but for the sheer speed at which it was assembled. 

It was only two months ago, following Scalia’s unexpected demise, that the presumptive nominee told Fox News that his pick would be “someone as close to Scalia as I could find. It will be a conservative person, a person with great intellect.”

A professional politician would have left it at that: a quick sketch of the kind of nominee they will be looking for, followed by a slick segue into studied vagueness.  Every politician understands that naming names can be a dangerous business.

The last Republican nominee, Mitt Romney, understood this, and so never released such a list.  Romney did not have a conservative judicial record while governor of Massachusetts.  He appointed many liberal judicial activists to the state bench during his term in office, and probably didn’t want to remind people of that fact

But, as we all know by now, Trump is not a politician, at least not in the traditional sense.  He is, rather, a builder.  He has spent a lifetime drawing up plans, breaking ground, and watching his buildings rise into the sky--to be completed on time, if not ahead of schedule.

That’s the thing about construction. A building is either completed on schedule or it is not. And if it is not, all the words in the world will not change that fact

With Scalia gone, I believe that Trump recognized that he had to convince conservatives that his pick for the Supreme Court would be a Constitutional conservative.  And, to help heal the divisions within the party, he had to convince them in a hurry.

I have to believe that the words, “You’re fired!”—the phrase he made famous on “The Apprentice”—concentrate the minds of those who surround the businessman. This is a phrase, after all, that gets results. Buildings rise in record time, and lists of possible Supreme Court nominees get vetted and approved within a few weeks.

So what, say the skeptics.  Trump knows he needs to unite the Republican Party behind him to win the election. And of course the Heritage Foundation and the Federalist Society can easily put a good list together in record time. But the list itself, they intimate, is simply a ploy to dupe conservatives into supporting him.

After all, as one Trump critic pointed out to me, didn’t he originally suggest, way back when, that his sister, a federal judge who has defended partial birth abortion against a New Jersey pro-life law, would be a good pick for the Supreme Court?

Well, no. If you read the transcript, Trump didn’t bandy about his sister’s name; the interviewer did. And all he said in response was to make several nice, bland, ultimately noncommittal comments about her. 

Did anyone really expect Trump, who by all accounts is devoted to his family, to instantly rule out the possibility of her nomination? I certainly didn’t.  Like Trump, I have a sister who is pro-abortion. And had I been in The Donald’s shoes, I wouldn’t have dissed one of my closest blood relatives on national television either.  Least of all in response to a gotcha question from a critical interviewer.

Not that Maryanne Trump Barry’s nomination was ever a realistic possibility.  Her age alone—she is in her seventies--would be enough to get her crossed off any short list for the Supreme Court.

Still, the episode created the perception in the minds of some, helped along by RedState and other anti-Trump sites, that she was Trump’s top pick.

I actually agree that it isn’t surprising that the Federalist Society and The Heritage Foundation could come up with a list of good candidates on short notice.  After all, they’ve been working on judicial nominations for years. 

But what is surprising--and encouraging--is that they were asked at all. I mean, if Trump had turned to, say, the left-leaning American Bar Association for a list of potential nominees, we would be seeing a very different list, one that I can virtually guarantee would include the name of not a single conservative jurist.  There would have been ten Kagan-Sotomayor-Ginsberg clones, with one David Souter thrown in for “balance.”

Instead, the businessman went in the other direction.  Following the advice of Alabama Senator Jeff Sessions, one of his earliest supporters and a senior member of the Judiciary Committee, he turned to conservative groups.  And the list that Trump came up with—because it is his list now, not anyone else’s--consists of eleven of the most qualified constitutional conservatives in America.

They are:

  • Judge Steve Colloton of the U.S. Court of Appeals for the Eighth Circuit (Iowa)
  • Justice Allison Eid of the Colorado Supreme Court
  • Judge Raymond Gruender of the U.S. Court of Appeals for the Eighth Circuit (Missouri)
  • Judge Thomas Hardiman of the U.S. Court of Appeals for the Third Circuit (Pennsylvania)
  • Judge Raymond Kethledge of the U.S. Court of Appeals for the Sixth Circuit (Michigan)
  • Justice Joan Larsen of the Michigan Supreme Court
  • Justice Thomas Lee of the Utah Supreme Court
  • Judge William Pryor of the U.S. Court of Appeals for the Eleventh Circuit (Alabama)
  • Justice David Stras of the Minnesota Supreme Court
  • Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit (Wisconsin)
  • Justice Don Willett of the Texas Supreme Court

Just how good are these picks from a pro-life, pro-family point of view? A judge is only as good as his opinions, so let’s get down to cases:

Steven Colloton and Raymond Gruender, who both serve on the Eighth Circuit Court of Appeals, voted in 2012 to uphold a South Dakota law requiring doctors to advise women seeking abortions that they face an increased risk of suicide after the procedure.

In fact, Judge Gruender wrote the 27-page opinion in the case, which laid out the evidence that women who had suffered abortions had a higher risk of suicide.

Judge William Pryor, who serves on the Eleventh Circuit, was viciously attacked by the Left at the time of his nomination for his unabashedly pro-life stance.

About Roe v. Wade, Judge Pryor said, “I will never forget January 22, 1973, the day seven members of our highest court ripped the Constitution and ripped out the life of millions of unborn children.”

For pro-lifers, it doesn’t get any better than that.

Two of the judges on the list have opposed the contraception mandate imposed by Obamacare.  Diane Sykes, who sits on the Seventh Circuit, issued an opinion striking down the contraception mandate imposed by Obamacare. Thomas Hardiman voted to rehear the contraception mandate case, although he was not on the original panel.

Sykes did come under some criticism from pro-lifers for an opinion blocking part of an Indiana law that cut public funding for abortion providers.  She wrote a narrow opinion arguing that the new law prevented Medicaid patients from exercising their existing right to obtain medical care from providers of their choice, including Planned Parenthood. At the same time, she wrote that the law did not “impermissibly burden” those seeking an abortion, as Planned Parenthood had argued.

Clerking for Justice Clarence Thomas is another thing that several of those on the list have in common.  Judge Allison Eid is a Thomas alum, as are Judge Thomas Lee and Justice David Stras.  Eid was once a speechwriter for William Bennett, while Lee is the brother of Utah Senator Mike Lee and the father of six children, which probably tells you just all you need to know about their originalist leanings and pro-life convictions

If you are looking for judges in the mold of Antonin Scalia, perhaps the only thing better than clerking for Justice Clarence Thomas is clerking for Scalia himself, into which category Judge Joan Larson falls. "I don't think that judges are a policy making branch of government, and our role is to serve the people by enforcing laws," she has said.

Another commonality that many in the group share is the Catholic faith.  We all know that those who declare themselves to be Catholic can be orthodox or nominal, practicing or lapsed.  The five Catholics currently on the Supreme Court are obviously not all equally schooled in, and certainly not equally respectful of, the Natural Law.

But it is interesting to note that, of the names on Donald Trump’s short list, at least five--Pryor, Sykes, Gruender, Hardiman and Colloton--are Catholic

As far as the state judges are concerned, they are generally harder to pinpoint on the originalist spectrum, since they haven't ruled on federal constitutional issues, but they appear to be solid.

Don Willett, an evangelical Christian who serves on the Texas Supreme Court, is reportedly its most conservative justice. 

But neither Christian charity nor judicial restraint have stopped the “Tweeter Laureate of Texas” (as he describes himself) from tweeting out a couple of dozen put-downs of the man who now, it turns out, would nominate him to the U.S. Supreme Court.

Last year Willet, a Tea Party favorite, even tweeted out a haiku that read:

Who would the Donald

Name to #SCOTUS” The mind reels

weeps—can’t finish tweet

The former rodeo bull rider might like to have that one back.

I am pretty sure that Judge Willet was astonished to find his name on the list.  So were a great many liberals, not least Hillary Clinton, who complained on her campaign website that “Donald Trump opposes abortion and Roe v. Wade.”

Nearly all pro-life, pro-family social conservatives, on the other hand, have been cheered by the caliber of the names on the list. Even the neocons at the National Review have embraced the list, which they grudgingly admit has “a number of solid conservative names on it.”  (I would say that they are all solid conservative names but, as we will see, NR is not inclined to err on the side of generosity where Donald Trump is concerned.)

Actually, to call the #NeverTrump types skeptical is an understatement.  And the list, superb though it is, has not been enough to bring them around.

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National Review itself has come so unhinged at the thought of a President Trump that they have virtually endorsed two-time loser Mitt Romney for President.  Never mind that he isn’t running, that he couldn’t get on the ballot in many states, that he couldn’t possibly win, and that his candidacy would virtually ensure that Hillary Clinton would win the election.  At least Trump would be stopped. 

Even worse is the position taken by other NeverTrumpers, such as Weekly Standard editor Bill Kristol, who has suggested that he would vote for Clinton over Trump.  Anyone who intends to vote for Hillary, it seems to me, has read themselves out of the pro-life, pro-family movement, and their views on Trump—or on anything else—should henceforth be ignored.

National Review dismisses The Donald’s list as “too little, too late.”  Why the list should be “too late” when the general election is still six months away is beyond me. Why it should be “too little” when it contains no fewer than 11 names for what will, at most, be two or three vacancies on the Supreme Court over the next presidential term escapes me as well.

But NR is just getting started: “[T]he timing of the list’s release smacks of [Trump’s] desperate pandering to conservatives.” In the real world--as opposed to the imaginary world of overheated ideological rhetoric--Trump is anything but desperate.  Instead, the presumptive nominee is calmly winning primary after primary and is coasting into the Republican convention next month in Cleveland having cleared the field. If anyone is feeling “desperate” it is Clinton, who has now fallen behind Trump in the latest national polls.

The magazine, which in the past I have contributed to, even manages to find fault with Trump for including in the list Ted Cruz supporters like Judge Thomas Lee, the brother of Senator Mike Lee, and Judge Sykes, ex-wife of Wisconsin talk-radio host Charlie Sykes, not to mention out-and-out critics like Judge “Haiku” Willet.  But where I see this as a laudable attempt by Trump to unify the party—even a willingness to move on beyond some of the nastiness of primaries--National Review sees only “trolling” or “targeted pandering.”

But National Review cannot have it both ways. If it is “pandering” for Trump to include well-known critics of his to his own Supreme Court list, then he cannot at the same time be accused of “petty vindictiveness”—which NR actually accuses him offor leaving Ted Cruz’ name off.

Those who say that the presumptive nominee “only published the list because he wants to win in November” are perfectly correct.  But what’s wrong with that?  Should Trump not want to win?  Or is it just that his remaining critics do not wish him to win?

It should give his conservative critics pause to learn that this is essentially the same complaint that the Washington Post has levied against Trump and his supporters.  In a recent editorial entitled “The rank nihilism driving the GOP’s acceptance of Trump”, the left-leaning paper criticizes Republican National Committee Chairman Reince Priebus for saying, “We want to win in November, and Donald Trump is someone who has been winning.” 

The fact that Trump and his supporters actually want to win seems to be upsetting a lot of people, who seem to forget that is why we have elections.

I understand that, after the hapless campaigns of John McCain and Mitt Romney, it has come as a shock to those of Progressive bent to have a Republican candidate who actually wants to close the deal.  But why any pro-lifer would be upset at this prospect is beyond me.

Some of the NeverTrump types may never come around, of course. They are so convinced that Trump is a congenital liar that there is simply no way to convince them that, in matter of judicial appointments, he is telling the truth.  Their views are already set in concrete.

Now let me interject here that, in the lying sweepstakes, my money is on Crooked Hillary.  After all, her entire political life has been based on Saul Alinsky’s cookbook of political deceptions, served over and over again to the American public by her and her husband, and seasoned with a healthy dollop of calculated evasions, misstatements, and outright lies. There are, one might say, lies, damned lies, and--then there are the Clintons.

Success in business, on the other hand, requires building networks of interpersonal relationships based less on written contracts than on personal trust.  And despite his occasional financial setbacks, and regardless of questions about his exact net worth (which varies from day to day), Trump has been heroically successful.  He is, like it or not, a real-life John Galt, a heroic figure in a free market drama of his own making.

To those social conservatives who are still open to rational argument, I say that it is time to take the Trump version of Blaise Pascal’s famous wager.

Let’s call it the “Trump Wager.”

If Trump is telling the Truth (i.e., if God exists), then we wind up in judicial Heaven. We get two or three new Supreme Court justices cut from the same cloth as Scalia. We can add to this number a couple of dozen conservative appeals courts judges, and maybe a couple hundred federal judges over President Trump’s term in office. 

If Trump is not telling the Truth (i.e., if God doesn't exist), then we would still get better judicial appointments from a Trump White House than from a Clinton one. Perhaps we wind up with another Anthony Kennedy or, worse yet, another David Souter. Both justices, of course, are living testaments to the miserable job that past Republican presidents have done in vetting candidates.  At least Trump is starting the vetting process early, and is talking to the right people.  Whatever his personal intentions, that bodes well for the process.

But with President Hillary, on the other hand, we get a straight run of black-robed tyrants, as Judge Robert Bork referred to those judges who believe that the law is merely a social construct of their own making.  We also get the Clintons’ trademark pandering to their progressive base. Can anyone doubt that Hillary is eager to make history by naming the first openly Gay Justice and the first Transgender Justice to the Supreme Court?  Or that such justices would be eager to write their personal sexual predilections and pro-abortion sentiments into settled law?

What this means is that, even if Trump issued his stellar list for purely political reasons, the choice is clear: Pro-lifers can either opt for judicial purgatory with Trump, or they can go to judicial Hell with Hillary. 

As for me and my house, we vastly prefer purgatory. While hoping, of course, for Heaven.

Steven W. Mosher is the President of the Population Research Institute.

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