Supremacy of the Court

First Things, 04 December 2020

Bush was not seized with the momentous opportunity to flip the leading liberal seat on the court, as Trump would be thirty years later.

The midnight religious liberty ruling from the Supreme Court last week—Roman Catholic Diocese of Brooklyn v. Cuomo—confirms why President Donald Trump, warts and all, retains the support of so many. Trump understood better than the Republican establishment he replaced that judicial appointments are of supreme importance to pro-life and religious liberty voters.

It is worthwhile to remember that history, for it explains in large part how a cavalier approach to core conservative priorities opened the door for Trump and the reconfiguration of American politics. 

In 1987 Joe Biden, presiding over the confirmation hearings for Robert Bork, applied pure power politics to judicial nominations. Biden, with the infamous assistance of Ted Kennedy, blocked Bork on the simple grounds that he did not agree with his judicial philosophy. They had the votes to block him—to “bork” him actually. So they did.

President Ronald Reagan rewarded Biden’s gambit, sending up Anthony Kennedy to replace Bork (after the next nominee, Douglas Ginsburg, withdrew). Over the next thirty years, Kennedy would remain faithful to Biden’s beloved abortion license and fashion for himself a fatherly role in establishing same-sex marriage as a constitutional right.

The subsequent Presidents Bush made matters worse. Go back thirty years to President George H. W. Bush’s first appointment. It fell upon the retirement of Justice William Brennan, the leader of the liberal wing of the court, called by Justice Antonia Scalia the “most influential justice of the century.” It was of Brennan and Chief Justice Earl Warren that President Dwight Eisenhower, who appointed them both, would famously say, “I made two mistakes, and both of them are sitting on the Supreme Court.”

Thirty-four years after Brennan joined the court, Bush Sr. would make the same mistake all over again. He was offered the choice of Judge Edith Jones, the Amy Coney Barrett of her day, and the enigmatic David Souter. Bush was not seized with the momentous opportunity to flip the leading liberal seat on the court, as Trump would be thirty years later. 

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