November 21, 2016
The Honorable Donald J. Trump
President-Elect of the United States of America
The Honorable Mitch McConnell The Honorable Charles Grassley
Majority Leader of the United States Senate United States Senate
Chairman of the Committee on the Judiciary
Re: The Nomination and Confirmation of Justice Antonin Scalia’s Replacement to the Supreme Court of the United States
Dear Mr. President-Elect Trump, Senate Leader McConnell, and Chairman Grassley,
Congratulations on your historic election victories. The American people owe each of you a tremendous debt of gratitude for ensuring that Justice Antonin Scalia’s seat is filled with a proven intractable constitutionalist. It is especially important to thank and acknowledge the monumental work of Senate Leader McConnell who showed immense wisdom, grit, courage, and endurance in keeping Justice Scalia’s seat open for nomination by the President-Elect.
Along with our gratitude, we respectfully offer the following for your consideration: (1) a review of lessons learned from the successes and failures of recent past Supreme Court nominations and confirmations; (2) recommended criteria for selecting a Supreme Court justice; and (3) a recommendation that the Senate signal its willingness to invoke the Reid/Schumer standard of fifty-one votes.
1. A Review of Lessons Learned from the Successes and Failures of Recent Past Supreme Court Nominations and Confirmations
The modern history of nominees to the Supreme Court is characterized by: (1) progressive success through commitment to progressive principles; and (2) conservative success and failure which has been directly related to whether or not the nominee had a known conservative record.
Over the last forty years, six Presidents have nominated fifteen justices to the Supreme Court; thirteen were confirmed and two (Robert Bork and Harriet Miers) were not. All four Democrat nominated Justices have remained progressive and were a success by progressive standards. Of the nine Republican nominated Justices, only four have remained solidly conservative (Rehnquist, Scalia, Thomas and Alito); a fifth, Chief Justice Roberts, has been largely conservative with the exception of his activist ruling in the landmark Affordable Care Act case. Of the other four Republican nominated Justices (Stevens, O’Connor, Kennedy and Souter), all were stealth nominees without demonstrable conservative records, who were strategically nominated with the goal of avoiding confirmation fights. All four of those nominees were progressives or developed into progressives.
On the five modern occasions when Republican Presidents nominated known “non-stealth” conservatives to the bench, only one was rejected by the Senate and that was Judge Robert Bork in 1987 by a Senate under majority Democrat control. The other four times, the Senate confirmed those nominees: Chief Justice William Rehnquist was confirmed 65-33 in 1986; Justice Antonin Scalia was confirmed 98-0 in 1986; Justice Clarence Thomas was confirmed 52-48 in 1991 (under a Democrat majority of 57 Senators); and Justice Samuel Alito was confirmed 58-42 in 2005.
Every time conservatives have backed a stealth nominee it has backfired. Every time conservatives have backed a known conservative with a Republican Senate majority it has been successful. The lesson is simple: refuse to support stealth nominees and only support known conservatives. It is encouraging to remember that the last Republican Supreme Court nomination battle to replace Justice O’Connor vindicated conservative principles because: (1) the first nominee was a stealth nominee (Harriet Miers) and she was defeated by principled conservatives, and (2) the second nominee was not a stealth nominee (Samuel Alito) and he was confirmed with strong conservative support.
2. Recommended Criteria for Selecting a Supreme Court Justice
A nominee to the Supreme Court should possess three non-negotiable characteristics.
His or Her Judicial Philosophy Must Square with the Text of the Constitution.
The Judiciary receives its power from Article III, Section 2 of the Constitution which provides courts with the authority to decide cases and controversies. (“The judicial Power shall extend to all Cases … [and] Controversies ….” U.S. Const. art. III, § 2.) Simply put, the role of the judiciary is to decide the facts in legal disputes between parties, and to apply the law to those facts in order to determine the prevailing party. It is critical that courts decide lawsuits in accordance with the laws passed by the people’s elected representatives.
Conspicuously absent from Article III’s grant of judicial powers is any mention of “legislative” power. That is because the Constitution grants all federal legislative power to Congress: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” U.S. Const. art. I, § 1. (Emphasis added.) Clearly, all federal legislative power is reserved to Congress and none is given to the courts.
Accordingly, courts are empowered to apply the law to cases but are prohibited from making law. Any judicial attempt to both make law and apply that law to disputes is anti-constitutional because it threatens to consolidate legislative and judicial power into one branch thus violating the separation of powers doctrine. A judge – especially a Supreme Court Justice – must be committed to exercising only the judicial power of applying law to decide cases and must never purport to make law.
A Nominee’s Proper Judicial Philosophy Must be Manifestly Evident from His or Her Record.
It is never sufficient for a nominee to pledge faithfulness to the constitutional judicial role during their confirmation process. History confirms that such professions are unreliable and often contrary to the subsequent performance of those judges. Rather, reliable evidence of the nominees’ fidelity to the constitutional role of the Judiciary must be found in the nominee’s professional record, including writings, speeches, interviews, opinions, official governmental acts if they served in judicial, Senate, or other office.
Evidence of a nominee’s fidelity to the constitutional role of the judiciary must be overwhelming. While scant evidence might decrease opposition from progressives, it would also guarantee increased opposition from conservatives who remain committed to not repeating the error of confirming another Republican “stealth” nominee like Justices Souter and Kennedy. Conservative rejection of Harriet Miers and confirmation of Samuel Alito is further evidence of the wisdom of nominating a Justice with a demonstrable record of fidelity to a constitutionalist judiciary.
A Nominee’s Record Should Testify to Their Courage and Unwillingness to Compromise Their Philosophy
It is essential that Justice Scalia’s replacement not only possess a strong judicial philosophy but a verifiably strong will with an intractable recalcitrance to political pressure. Judges should never be swayed by political and social pressure. However, recent revelations detail successful progressive efforts to bully justices into voting their way. Accordingly, a justice must be intractable in their commitment to perform the judicial role without regard to outside pressure.
In conclusion, a successful nominee to the Supreme Court must be a proven, intractable, constitutionalist.
3. A Recommendation that the Senate Signal Its Willingness to Invoke the Reid/Schumer Standard of Fifty-One Votes.
Prior to 2013, the Senate permitted filibusters of judicial nominees, which required sixty votes to proceed to a vote. In 2013, then Senate Majority Leader Harry Reid invoked the “nuclear option” and abolished the filibuster of judicial nominees. No Supreme Court nominees were pending and, therefore, Reid did not apply the rule to Supreme Court nominees. However, four weeks ago Senator Reid – presuming Democrats would retake the Senate majority – announced that Democrats would apply the Reid/Schumer fifty-one vote rule to the Scalia vacancy on the Supreme Court “just like that.”
Simply put, it is unjust to permit progressive nominees to be confirmed with fifty-one votes, but for conservative nominees to be confirmed with sixty votes. Accordingly, Senate leadership should signal their willingness to apply the Reid majority rule to the Justice Scalia vacancy.
Finally, a successful nomination and confirmation strategy should assume at the outset that conservatives will only need fifty-one votes. To do otherwise would increase the temptation to select a nominee who might attract sixty votes, including eight progressive Senators. To do so would repeat the historic error or fielding a “stealth” nominee with a record acceptable to judicial progressives. Moreover, the failed confirmation of Harriet Miers taught us that a Republican nominee who can attract progressive “yes” votes, will draw twice as many conservative “no” votes.
While bi-partisanship is a laudable goal, it should never drive Supreme Court nominations, because nominations, unlike legislation, cannot be repealed and replaced. Some judicial
nominations endure for generations and testify to a President’s legacy decades after he leaves office.
Conclusion
The day Justice Antonin Scalia died was tragic and left many Americans in despair over the future of our Supreme Court and our Constitutional Republic. This Nation owes you Leader McConnell and Chairman Grassley an eternal debt of gratitude for preventing the confirmation of another progressive to the Supreme Court.
It is nothing short of a miracle that we now find ourselves on the threshold of the nomination and confirmation of a constitutionalist Justice to our Nation’s highest court. Clearly, God has His hand on you three men. We humbly encourage you to continue with your current course. As you do, God will continue to move Heaven and earth in your favor and we will see the confirmation of a proven intractable constitutionalist Supreme Court Justice.
If we may be of any service, please do not hesitate to call upon us. Thank you again for your excellent and faithful work.
Most respectfully,
Judicial Action Group
Phillip L. Jauregui, President
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