What Trump Should Look for in a Supreme Court Nominee | Opinion

From an impeachment to a pandemic, 2020 has been a crazy year. But with the passing of Justice Ruth Bader Ginsburg, crazy is about to be taken to a whole new level. President Donald Trump has the rare opportunity to appoint a third justice to the U.S. Supreme Court. But even as he narrows down his short list, it is the Senate that will truly decide whether conservatives can change the course of constitutional law for the next decade.

The most important criterion for a justice is a commitment to faithful interpretation of the Constitution according to its original meaning, rather than imposing his or her personal preferences on the nation. Many years of Republican appointees who transformed into liberals—from Harry Blackmun to David Souter—also teach the importance of character. Nominees must have the fortitude to stand up to cultural elites in the media, academy, or Washington, D.C., who will pressure them to "grow in office"—always in a liberal direction. A track record of judicial and scholarly writing committed to originalism will ensure that a nominee shares the president's constitutional values and will not shrink from a fight.

Choosing justices is a political, as well as legal, act. No president could select a nominee under these circumstances without considering his or her effect on the approaching election. President Washington chose judges based on geographic region to encourage loyalty to the new nation; Eisenhower nominated the liberal William Brennan to appeal to urban Catholics in the 1956 elections. Faced with a deep pool of qualified candidates, the president has every right to pick a judge who bears political advantages.

That means President Trump should nominate a woman.

Poll watchers observe that Trump has lost support among suburban women. Imagine a confirmation hearing the week before the election, in which Democratic senators do their best to destroy the reputation of a qualified female nominee. Take Amy Coney Barrett, for example—an accomplished Catholic mother of seven, two of whom were adopted from Haiti. Or Barbara Lagoa—whose parents fled Castro's Cuba and who became the first Hispanic member of the Florida Supreme Court. Nationally televised attacks on these nominees could drive female voters away from the Biden ticket, just as disgust with the attacks on Brett Kavanaugh helped Republicans win several Senate seats in the 2018 midterm elections.

Trump should pick a nominee to appeal to a sufficiently broad demographic, rather than to influence any individual state or the confirmation hearings. It is not likely that a nominee from a particular state will help the president win there. Political scientists have found that vice presidential nominees no longer help carry their states. It would be even less likely for a Supreme Court nominee to do so.

Picking a nominee who might promise an easy confirmation process also will do little good. It would not matter if the president nominated Mother Teresa—Democrats are promising a political Armageddon. Perversely, the bigger the fight, the more it may help Trump. By going to extremes during the Kavanaugh hearings, Democrats lost the average American. A no-holds-barred attack on a female conservative jurist replete with protesters dragged out of hearings, Hollywood B-list actors claiming constitutional knowledge, wild accusations of moral improprieties, and attendant riots will play to Trump's advantage.

Finally, in selecting the best nominee, the White House will have to find the right balance between experience and age. But given life tenure, the younger a nominee is, the longer President Trump's legacy on the Court will last.

U.S. president Donald Trump speaks to members of the press prior to his departure from the White House to North Carolina for a campaign rally. (Photo by Sarah Silbiger) Getty

There is little doubt that President Trump will nominate someone as early as this week. It is his right to do so under Article II of the Constitution. Justice Ginsburg herself observed as much four years ago during the fight over President Obama's effort to fill the vacancy created by Justice Scalia's death during an election year. "There's nothing in the Constitution that says the president stops being the president in his last year," Ginsburg said in a 2016 New York Times interview in which she called for Judge Merrick Garland to receive a confirmation vote in the Senate.

Of course, as the example of Garland illustrates, it is the Senate where the decision to fill the Ginsburg seat truly rests. Republicans will move ahead to confirm a Trump nominee. The only question is whether to vote before or after the November 3 elections. Already crying foul, Democrats are accusing Senator Mitch McConnell of hypocrisy based on his refusal to schedule a vote for Garland in 2016. Republicans argue this time is different because the White House and the Senate are held by the same party. Both sides try and point to historical precedent.

But Democrats only have themselves to thank. They are now seeing the results of their steady escalation in the judicial nomination wars. It was Democrats who turned the Senate's confirmation process into an openly political exercise when, in 1987, they blocked the appointment of Robert Bork to the Supreme Court. Bork was perhaps the most supremely qualified conservative legal figure of his generation, a Yale Law School professor, solicitor general and judge on the D.C. Circuit, the second most important court in the land. Ignoring the nominee's qualifications, intelligence, record and temperament, Democrats rejected Bork because they believed his originalist views would lead to the end of Roe v. Wade. Who led that 1987 fight? None other than Joe Biden, who chaired the Judiciary Committee hearings in which Bork was attacked. It is the height of hypocrisy now for Biden to call on the Senate to reach a political consensus not to fill the Ginsburg seat, when he himself led the descent into the confirmation wars in the first place.

Democrats have only accelerated the spiral downwards ever since. They sought to use last-minute, unfounded charges of sexual harassment to stop Clarence Thomas's appointment to the Supreme Court in 1991. They instituted a filibuster for judicial nominees when they held a Senate majority during the George W. Bush administration, but then lifted it during the Obama administration when they wanted to rush through nominees to the lower courts. They tried to derail Brett Kavanaugh with more last-minute, unfounded charges of sexual harassment. Senate Democrats have no grounds to complain when Republicans reply to this political escalation in kind by removing the filibuster for Supreme Court nominees and now allowing a vote on a Supreme Court nominee in a presidential election year.

Democrats have guaranteed that politics will dominate the Ginsburg seat, but there is no constitutional reason for the politicization otherwise. The Constitution allows Trump to nominate someone for a vacancy right up until his term expires. It authorizes the Senate to provide or withhold its consent, which can take the form of voting down a nominee, or not voting at all. President Obama exercised his constitutional right and nominated someone in a presidential election year. But the Senate, controlled by the opposing party, constitutionally refused to provide its consent.

Today, the same political party controls both the White House and the Senate, and when voters chose their occupants, they chose those who would nominate and confirm Supreme Court justices until January 2021. In 2014, American voters decided they wanted a check on President Obama and returned the Senate to Republicans. Republicans provided that check by blocking his nominee. The voters spoke again in 2018—and that decision does not expire until January. And while the election is in just 42 days, ironically, Justice Ginsburg herself was confirmed in just 42 days (and Justice Stevens in just 19).

Implicitly recognizing all of this, Democrats are threatening revenge in numerous ways. One measured response would be a promise to appoint their own nominees when they control the presidency and Senate in an election year. Instead, several leading Democrats now propose to pack the Supreme Court with up to six new justices.

Adding more justices in January of next year—if the Democrats win the Senate and White House—could provide some short-term advantages. But it would start a war. Republicans would inevitably return the favor when they regained the White House and Senate, as they inevitably will. And in the long run, the legitimacy of the Court—the branch of government in which Americans have the most confidence—would evaporate. To quote the classic line from the 1985 Matthew Broderick movie, War Games, "The only way to win is not to play." But if our nation has to go through this, it will be Democrats who made the first move.

John C. Yoo is Emanuel S. Heller Professor of Law at UC Berkeley School of Law, a visiting fellow at the American Enterprise Institute, a visiting scholar at the Hoover Institution and the author of the new book, Defender in Chief: Donald Trump's Fight for Presidential Power. James Phillips is an assistant professor of law at Chapman University's Fowler School of Law.

The views expressed in this article are the writers' own.