Douglas Andrews / September 10, 2020

Judicial Picks: A War Not of Our Choosing

Dems politicized the judiciary, so don’t blame Trump for beating them at their game.

“Some solid judges,” says the subhead from the Wall Street Journal’s editorial board, “but three Senators make the choices disappointingly political.”

The Journal’s editorial thus begins by making it seem as if President Donald Trump has done something untoward, even unprecedented, by mixing politics with the judiciary. As if our third branch of government had until this moment been pure, pristine, and altogether free from political influence. As if we could until now practically lay our hands on the magnificent wall of separation that safeguards our courts from the seedier side of representative government.

None of this is true, though; not even remotely so.

“Donald Trump’s 2016 list of potential Supreme Court nominees helped solidify conservative support for his campaign,” the editorial continues, “and as President he’s followed through. Mr. Trump’s mark on the federal judiciary — including two Supreme Court Justices and 53 appellate judges — is one of his notable successes. On Wednesday his campaign released 20 more potential Supreme Court nominees. And while there are strong picks, the list also shows that the campaign has traded some legal seriousness for political signaling.”

So what’s wrong with a bit of “political signaling”? After all, the courts were a political battleground long before Donald Trump came down that golden escalator. In fact, we can practically put a date to the moment it all turned political: July 1, 1987. That’s the day Senator Ted Kennedy and his fellow Democrats on the Senate Judiciary Committee (chaired by none other than Joe Biden) shamefully “borked” Ronald Reagan’s third Supreme Court nominee, the brilliant and eminently qualified Judge Robert Bork.

Since that moment, politics and the judiciary have been inseparable, and their awful commingling has become the Beltway’s favorite blood sport. Just ask Justice Brett Kavanaugh. Or ask Kamala Harris, one of his primary tormenters.

Yes, President Trump added Republican Senators Tom Cotton, Ted Cruz, and Josh Hawley to a judicial wish list. But that list also includes numerous selections that are outstanding for their judicial record. So let’s remember who first politicized the judiciary, and let’s not castigate this president for refusing to unilaterally disarm himself and his party.

Kevin Daley picks up on this theme in The Washington Free Beacon: “Wednesday’s announcement,” he writes, “made with an eye toward the November election, is meant to galvanize conservatives after halting progress in the promised revolution of jurisprudence Trump hawked in 2016. While legal conservatives have notched landmark victories on school choice, religious symbolism in public life, and the First Amendment, they have been attended by recent setbacks on LGBT rights and abortion. Joe Biden has yet to issue his own list though he has promised to name a black woman to the Supreme Court, greatly narrowing the universe of possibilities.”

Where, then, is a comparable list of Joe Biden’s potential SCOTUS picks? Wouldn’t it be helpful for voters to see his selections in contrast to those of President Trump so as to better assess the judicial philosophies of the two candidates?

Trump, not surprisingly, has already issued the challenge: “Joe has to come up now with a list,” he said. “Otherwise, people can’t vote for him. But the reason he possibly won’t is because he’s going to come up with far, radical left judges. I mean, these will be people that are very, very far to the left, that are, you know, revolutionary, in a sense, I think. And he’s got to come up with them.”

We won’t hold our breath for a list of Biden’s judges — which is why it’s fair to say that Trump has already won this particular political skirmish.

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