DANIEL VAUGHAN: A conservative replacement for Kennedy was 30 years in the making

June 29, 2018

DANIEL VAUGHAN: A conservative replacement for Kennedy was 30 years in the making

The retirement of Anthony Kennedy from the Supreme Court is a once-in-a-generation chance to reshape the Supreme Court for conservatives.

It’s an opportunity to reverse over 30 years of judicial gamesmanship started by Democrats when they destroyed Robert Bork during his nomination hearings, which gave the Supreme Court and America the swing vote of Anthony Kennedy.

The “Borking” of Robert Bork was a seismic shift on the direction of the Supreme Court. Instead of helping push the Supreme Court in a more conservative direction, President Ronald Reagan was forced to compromise by the likes of then-Sens. Joe Biden and Ted Kennedy.

From a rule of law standpoint, the results have been a disaster. As was written in National Review:

Again and again, Kennedy made rulings that aggrandized the power of the Court and of himself as its swing justice. No justice, right or left, was more willing to substitute his judgment for that of elected officials and voters. No justice was less willing to tie himself down to clear rules or a legal philosophy that would constrain him in future cases, let alone rules or a philosophy that bore a plausible relation to the Constitution. We moved toward a system of government no Founder intended, in which his whim determined policy on a vast range of issues.

The next Supreme Court nomination has a chance to finally give conservatives something they’ve not had in post-WWII America: a strong, defined, conservative majority on the Supreme Court.

Because of Harry Reid’s escalation of the Biden-Kennedy “Borking” tactics, Senate Majority Leader Mitch McConnell was forced to remove the roadblocks to the Neil Gorsuch nomination in 2017.

After 30 years of putting up roadblocks to any conservative justices to the Supreme Court, Democrats now have to pay the price for their past decisions. That realization is why there’s a sudden shift in tone and tactics, as they’re beginning to regret the results of past power moves.

New “agreeable” and “bipartisan” ideas to reduce the politicization of the Supreme Court magically appear now.

For instance, there’s a newfound appreciation for term limits on the left, with some calling for 18-year term limits on Supreme Court justices.

Of course, term limits aren’t an earnest idea for the court. The case against them is straightforward: term limits reduce the impact of excellent judges. Kennedy’s swing votes were annoying to be sure, but reducing the influence of someone like Antonin Scalia, who single-handedly reshaped the entirety of the judiciary, is a massive loss.

And second, term limits would dramatically increase the politicization of the court. Instead of being a check on the other branches of government, the Supreme Court would reflect them.

Term limits are entirely out of line with what the Founders envisioned, as Hamilton expressed in Federalist 78, describing the need for political independence:

It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts.

On the less friendly side of the left are fringe ideas trying to become mainstream. FDR’s court-packing scheme is regaining prominence, as some far-leftists want to pack the court with justices in the future override whatever conservative may exist at the time.

Court packing, from FDR to the present, should be seen for what it is: an open power grabbing mechanism. These people aren’t attempting to uphold the Constitution, support the rule of law, or protect rights.

Court-packing has one goal, and one goal only: to empower one political group over all the others to shove an agenda down the rest of the country’s throat.

Court packing is the exact opposite of supporting democracy, as some defenders claim. The court-packing scheme destroys the Supreme Court as an independent check and balance on other branches of government.

If any political movement can pack the court to get what it wants, then the rule of law means nothing and only the will to power in the political order matters.

Progressives pushing for court packing aren’t trying to save the Republic — they’re just trying to usurp power for themselves. This idea isn’t the type of thing you see in an established democratic republic; it’s the type of thing banana republic dictators do.

Liberalism reigned in the Supreme Court for better or worse throughout the 20th Century and into the 21st. Now that they’re losing power, suddenly liberals are feigning concern that the institution has gotten too powerful.

The problem is that their concern is about a century too late, and none of their solutions are federalist, which would return power to the states, local governments, and individual people.

It’s not ideas they’re worried about losing, it’s power.

The next nominee has a chance to pursue an originalist and federalist stance on government. That’s worth pursuing, not bellyaching over by Democrats.


Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.