How many conservatives have been happy with the performance of the Supreme Court for about the last 50 years? Anyone…anyone at all??
That’s how long our court is supposed to have been “conservative” according to the liberal intelligentsia. In fact, going back even farther, since 1953 there have been 25 justices appointed to the Supreme Court. Of those 25, seventeen were appointed by Republican presidents. Yet since 1968, when people believe the court turned “conservative,” we have seen an ever increasing willingness of the court to wade into legislative issues best left to the people, finding new rights that never existed in the Constitution, and an ever expanding list of left leaning decisions.
Whether the issue is eminent domain, or striking down the Defense of Marriage Act, or declaring that the people don’t have standing to defend their own laws, or upholding abortion rights, or forcing gay marriage on the country, or declaring that states don’t have the right to uphold US laws, even when the Federal Government won’t, or upholding affirmative action, or striking down safety regulations at abortion clinics, or upholding Obamacare, the result has been the same. The conservative side has lost.
In fact, it was the appointments of Dwight D. Eisenhower and Richard Nixon that gave us the landmark abortion case, Roe v. Wade, to begin with.
It’s been so bad that an analysis done by Scotusblog of the 2015 session found there were 26 cases that were both close (5-4 or 6-3) and that also broke down along ideological lines, and in those cases, the liberals won 19 of them. The conservatives only won 7.
The only significant conservative victory in the last 30 years is the Heller decision, but even that was more of the “half a loaf is better than no loaf” variety. In that decision the court finally recognized the individual right of American citizens to keep and bear arms, but they completely ignored the “shall not be infringed” part of the 2nd amendment when they declared that the government has the right to set “reasonable” restrictions on gun ownership. This has led to the government adding more and more burdensome regulations, and attempts to create more and more classes of people who can have their 2nd amendment rights revoked.
Does this mean we shouldn’t care about nominating conservative judges to the Supreme Court? Absolutely not. It is far better to have judges that are politically conservative (both fiscally AND socially) and that respect the original intent of the Constitution, and we should absolutely strive toward that end. The reality, however, is that we have not had a reliably socially conservative court in my 46 years on this earth, and the track record of Republican presidents in this area has been far from stellar. Even Ronald Reagan only had about a .333 batting average in this respect, putting one conservative (Scalia) and two swing votes (Kennedy, O’Connor) on the court.
Despite the dismal record of Republicans in this area, the appointment of Supreme Court judges has been one of the loudest rallying cries to try and get people to board the “Trump Train.” (Ironically, it was one of the most important points used AGAINST Trump in the primaries, but Trump supporters seem to forget about that part). If Clinton is elected, the argument goes, Hillary will appoint 3 or 4 liberal justices, and we will lose the court for a generation. If Trump is elected, he will appoint good judges in the mold of Antonin Scalia.
First, let’s look at this with a little perspective. Hillary Clinton will not be appointing 3 to 4 Supreme Court judges. The most judges any president has appointed to the court in the last 30 years has been two. The most judges any Democrat president has appointed to the court in the last 60 years has been two.
To truly understand the impact a president can have on the court you need to consider two main factors:
1 What are the philosophies of the president making the choice?
2 Which justices are most likely to retire based on which party controls the White House?
When it comes to the philosophies of each candidate Trump and Clinton are both social liberals. They both support abortion, gay marriage, transgenderism, affirmative action, and gun control. It is reasonable to assume that both Trump and Clinton will appoint socially liberal judges given the opportunity. In fiscal and other issues, Trump is more of a capitalist than Clinton is, so when it comes to corporate rights or other business related decisions, Trump is more likely to appoint judges that would side with Republicans when it came to issues like Citizens United. The bottom line is that there will be no difference in the temperament of judges appointed by either Clinton or Trump when it comes to social issues. They will all be liberal.
The second factor we need to consider is which justices are likely to retire based on who is President?
It is not a big secret that judges appointed by Republicans are more likely to retire under Republican presidents, and judges appointed by Democrats are more likely to retire under Democrat presidents. It is rare for a death to create a vacancy on the court. Over the last 100 years there have been 41 vacancies on the court and 31 of those vacancies were caused by retirement or resignation. Only 10 vacancies were due to deaths and only three of those have occurred in the last 60 years. The most likely cause of vacancies is retirements and this is where the uniformity of the socially liberal leanings of Clinton and Trump really becomes a problem.
There is already a vacancy on the court right now with the death of Justice Scalia, who was one of the most conservative justices on the court. Whether Hillary wins or Trump wins, if they both appoint judges that match their philosophies, this seat is going to flip from solid conservative to moderate/liberal. I know Trump fans will disagree, but the overwhelming evidence says that this seat is going liberal no matter who wins the White House. What happens next, though, could spell bigger problems.
If Hillary wins, there are only two liberal judges that may step down. Ruth Bader Ginsburg is 83 years old, and the most likely Justice to retire next. Stephen Breyer is also 78 years old and may decide to step down. Elena Kagan and Sonia Sotomayor aren’t going anywhere. Replacing Breyer and Ginsburg would be trading liberals for liberals and wouldn’t affect the balance of power on the court, so the most likely outcome of a Clinton Presidency is a net gain of one seat for the liberals.
If Donald Trump wins the presidency, you are looking at two very different judges possibly stepping down. Anthony Kennedy is about 80 years old, while Clarence Thomas is 68 and has already made rumblings this year about possibly stepping down. Samuel Alito and John Roberts are not going anywhere. Kennedy is considered a swing vote, but Thomas is the most conservative judge left on the court. If they step down, their seats would be in the hands of a man who has touted his liberal sister and the socially liberal billionaire, Peter Thiel, as possible appointees. If Thomas and Kennedy retired, and Trump nominates judges that match his belief system, we could actually see a net swing of 2.5 judges away from the conservatives and into the hands of the liberals. (I only count Kennedy as half a conservative at best).
“Well, the Republicans in the Senate will prevent Trump from appointing these socially liberal judges by refusing to confirm them,” you say. Really? What makes you think that? For years now the establishment has wanted social conservative issues to just go away. Oh, they want our votes, and they give lip service to our issues, but when the rubber hits the road we are always stabbed in the back. Some have even supported losing these social issues in the Supreme Court in the hopes it would take the issue off the table. In fact, there were many people who believed the ruling that upheld Obamacare was a GOOD thing! They felt that, because the court upheld the constitutionality of Obamacare, it kept the issue alive for Romney to use against Obama in the 2012 elections. How’d that turn out for us??
Furthermore, you really have to understand that the average die-hard Trump supporter DOES NOT CARE about these issues. Just take a look at the comments of Ann Coulter and you will know all you need to know about a Supreme Court populated by Trump appointees:
I don't care if @realDonaldTrump wants to perform abortions in White House after this immigration policy paper. http://t.co/l7nq8gN7i5
— Ann Coulter (@AnnCoulter) August 16, 2015
I want a conservative Supreme Court. I want judges that will not just be fiscally conservative, but that will also uphold the socially conservative values that have far too often been left behind. We have three solid socially conservatives judges on the court and one swing vote. I don’t see any gains coming in the next four years, and I want to lose as little ground to the liberals as possible. In order for me to believe that Trump would appoint judges like Clarence Thomas and Antonin Scalia, I would have to believe that a 70 year old man who has been a liberal Democrat all his life will suddenly go against everything he has ever believed. I would also have to believe that a man who has proven that he does not take the advice of his subordinates will suddenly be swayed by wise counsel when it comes to such a momentous decision.
What do you believe is the most likely outcome?
36 comments
Great look ahead at the possible outcomes. The trolls who are detached from reality will be all over this. You can’t question their Armaggedon. Either they don’t understand separation of powers, or they assume one of the other branches is broken, in which case I have to ask why they’re going to general quarters over the executive branch. If one of the branches are broken, we should be focused exclusively on that, and not this freak show presidential election, since sustained rule of law isn’t possible without three functional branches.
Separation of powers!! Hoorah! I have argued with your stupidity over immigration before… Let’s look at what Democrats… Obama whom you have credited with such a wonderful job of controlling illegal immigration did with his Executive Amnesty.
He ran roughshod over:
Ah, Border ParanoiaMan. Faster than a speeding yellow journalist. Able to leap tall facts in a single panic.
Okay, let’s just put down the border discussion and say for a minute that 100,000 zombie adolescent drugged Mexican murderers are closing in on your Klan rally in the darkness. You’ve got me. We’ll stay with the topic at hand.
If the legislative AND judicial branches are truly broken as you assert, the choice of president doesn’t matter.
But you know what’s going to happen? Next January, tanks WON’T roll through the streets of your Godforsaken town. Your friends WON’T be rounded up into a FEMA death camp. George Soros won’t send Chinese factory workers into Armpitville to steal your job.
No, next January, a peaceful transfer of power will take place. your functional neighbors will go to work, and behave like members of a society. Congress will convene with many freshman legislators.
And every rational adult in America will regard you and your xenophobic bulls**t with a mixture of horror and derision. The group discount vacation from reality you took with your fellow Klansmen and other miscreants will be the subject of humor, just to help America get past the fact that your distorted views were so reckless and frightening.
And all conservative causes will be associated with you and your pea-brained, loudmouth a**hole friends who will be an embarrassment for YEARS as conservative advocates struggle to rally support and regain a reputation of legitimacy.
And over your breakfast rant, your wife, or mother, or other domestic partner unfortunate enough to share a street address with you is going to tell you to shut and go to work.
So given that you already have border and political omniscience, take the clarvoyance you just gained in reading this post. And shut up and go to work. And stop. Embarrasing. Conservatives.
Just go campaign for Hillary dude. Be on your way.. You’re with Her! Your bloody f ing stupid columns get worse by the minute. I take it from this drivel, that we should hope that Hillary wins… listen up numbnuts, she already has one appointment to make and that swings the bloody court… You replace Scalia and it is 5-4 because Kennedy votes with the liberals..
I’m not with Hillary. I’m with neither.
Then shut your stupid pie hole… You are arguing in this drivel that it is okay if Hillary is elected because she won’t really have that big effect on the judiciary… Bull CRAP son.
So because I don’t support your guy I need to “shut my stupid pie hole?” Is that how you deal with people who don’t agree with you, anonymous troll?
As one who has more than a passing familiarity with the GOP, you should shut your Republican stupid pie hole.
So speaks “other anonymous troll.”
Bet you’re not too keen on secret ballots either. Did you wish to know my identity for intimidation or retribution?
What makes you think I don’t already know who you are? We have had taps on your phone and official TBE Black Helicopters circling your house from your very first post.
I just find it interesting how brave certain folks can be in insulting other people when they are hiding behind fake names.
Now you see why Reynolds Wrap is used for a lining insulator.
A pen name allows for a certain degree of candor and masquerade in this game we call politics.
I am not a public figure and I do not insult but ratherI choose to carry my identity in a concealed fashion in order to not reveal my sources and methods.
And everyone knows that the black helicopters are NWO while TBE is in the vaguely elephant-shaped stealth dirigible.
lol
Logically, you can’t be with neither, but your support for other than the nominee is clear and noted.
Yes, I can. The reason I don’t like Trump is the same reason I don’t like Hillary.
I don’t support Democrats.
Tautology disagrees.
Your convention picked Trump, I will always be grateful to you for that.
Because of you and your endeavor, Donald Trump gets the R.
So you’d rather trust Clinton to appoint better Supreme Court justices? Your intellect is truly dizzying.
No. I expect they will both appoint equally bad judges.
But you would rather have her pick bad judges rather than Trump pick bad judges?
No. I would rather have neither of them pick judges. I am pointing out the possible effect either of them could have on the balance of power on the court based on who would be more likely to retire in each situation. I also have no faith in the establishment Republicans in the Senate to stop Trump if he decides to appoint liberal judges.
It keeps coming back to a Trump outcome is superior to a Hillary outcome. You seem to advocate the opposite.
This doesn’t make sense to me.
Clearly this turd is better than that turd, why can’t he understand?
That’s because he wrote at the 11th grade level.
I don’t advocate either. I provided a hard analysis of the future of the court that doesn’t match the current rhetoric of the campaign. You can take it or leave it, agree with it or disagree with it.
It is my opinion that people who are voting for Trump based solely on Supreme Court judges are going to be sorely disappointed. If you disagree, that’s fine.
Nope, I disagree. This is just more of your ‘don’t vote for Trump’ shtick.
The only objective of that can be a Hillary win.
You really think I want Hillary to be president?? Trump is doing just fine in making that happen all on his own. Nothing I say or do is going to change that.
Yes I do. You were a Republican leader, your endorsement enabled the SCC one vote primary decision. You are taking a public stance not in support of the Republican nominee.
Or do you think that even a Trump is better than a Hillary at this particular juncture?
You keep on harping on this SCC thing, and you know it’s just not true. Nicholson, Guevara, and Dunn split the conservative vote three ways and gave the seat away. Furthermore, there were enough votes for a convention until Ron Hedlund stabbed everyone in the back.
As much as I appreciate your belief that I can sway district level elections with the strength of my extremely influential support, your continued trolling on this point is way off base.
Yes, because the SCC, and those that support, enable, endorse, and elect them are to blame.
Live by the slate, die by the slate. You personally endorsed a winning vote for an SCC member who cast the deciding vote for the primary. (Each vote was a deciding vote because it lost by one.) You and yours cost Virginia taxpayers $4 million. You and yours are responsible for every other vote of your hand-picked selection of representative to the SCC. You may own it.
Ron Hedlund should illustrate the silliness of the SCC — one vote allowing flawed convention or parasitical primary — and this is the best our party can do? This travesty hangs on the entire SCC and the lot of them should be bounced to the curb. I’d rather choose their makeup and our nominees from today’s attendees at Rally in the Valley than any of your endorsements.
Without going into your awesome, thoughtful, and well-deserved political clout and juice, my trolling, striking, and landing point deserves to be drilled home at every opportunity. We are responsible for the endorsements we make, the actions we take, and the compacts we break.
It isn’t possible that neither of them will pick judges, son…
One thing is for sure, it will be interesting to see how Obama rules on Obamacare issues.
Lol that’s frightening.
The thought of 4 more Ruth Bader Ginsbergs on the court horrifies me. That is what a vote for the Hildebeast or a loser third party candidate will do for America. The type of judges that she will appoint is a fact that cannot be disputed. At least The Donald has put forth a list of conservative judges that have a history of upholding our Constitution. Whether you believe he will follow through with those choices is a baseless worry. If you think for one minute that the leadership in the GOP controlled Senate will allow The Donald to appoint liberal judges with the way they are attacking him now during this all important campaign, somebody has got to be crazy in the head. For anyone with a conservative bone in their body, the choice is clear.
Yep.
Trump may or may not appoint judges.
But we know with 100% certainty that Hillary will not.
Once Hillary replaces Scalia you can kiss things like religious freedom and the individual right to own firearms goodbye.
I believe if Clinton wins we get the Warren Court 2.0. I trust Trump more because of his pick of Mike Pence to be his running mate that he will nominate Justices I n the mold of Antonio Scalia.
There are a couple of other points to bring to mind. Supreme Court Justices can be just as bad as members of Congress in loving the incubated urban power of D.C. that it tacks them to left. Two prime examples of this were nominal Republican Justices Stevens and Souter who joined the left wing of the court and intentionally waited for Bush to leave office to retire under Obama and get Democratic replacements. This last year, I also have great concern with Justice Kennedy seeming to follow this trend by moving left on affirmative action, disparate impact, and abortion. I am also mindful that Justice Kennedy is in his early 80s and eventually he probably will want to spend more time with grandchildren than stay on the High Court (I know I would). So with the Scalia vacancy and I’d say 50 percent chance (at least) that Kennedy retires in the next four years, we could be looking at a 6-3 liberal Supreme Court. This is scary. I could easily see that court overturn precedents with regards to favorable First and Second Amendment decisions that stand in the way of their preferred liberal policies. Accordingly, I think this alone is worth taking a chance with Trump.