With Justice Stephen Breyer’s official announcement on Thursday of his impending retirement, conservatives are strategizing on the best approach to prevent the confirmation of militant left-wing justice. Instead, Republicans should pray that President Biden nominates the goofiest, most far-left lawyer possible for a seat on the High Court.
Why? Because history has proven that a far-left justice will be no worse than a moderately liberal justice in the Supreme Court vote, which means there’s no downside to a choice of far left, while the upside potential is huge, given that it is Biden appoints the new judge and not a Republican president: Thank you very much, Never Trumpers.
While over the past four decades judges appointed by Republican presidents have demonstrated a penchant for “growing up” in office or been more moderate or pragmatic than proclaimed upon confirmation, the same is not true. even for Democratic-appointed judges, who vote under near-perfect conditions. step by step in their career.
Then there are the Republican-appointed justices who do not abandon their judicial philosophy, but conclude that a faithful application of originalism compels them to vote with the left wing of the court. Judge Neil Gorsuch provides a perfect example of this phenomenon, providing the fifth vote in several cases in the criminal context, and before him the late Judge Anton Scalia.
Conversely, in closed or contentious cases, Democratic-appointed judges “represent a bloc geared toward progressive policy outcomes.” It is important that these judges be perceived as centre-left or far-left: the desired liberal outcome dictates the decision. Fighting for less left-wing justice is therefore useless.
On the other hand, there are plenty of bright spots for the conservative cause if Biden nominates a far-left nominee to the Supreme Court. With midterm elections later this year, Biden appointing an extremist to the high court perfectly positions Republicans to talk about the importance of elections — and Senate oversight in particular.
The nomination of a far-left nominee will also be an opportunity during the confirmation process for Republicans to highlight recent public revelations about the Democratic Party’s true far-left goals. President Biden has already shown the party’s obsession with identity politics by promising the country that its nominee will be a black woman, so men and white people don’t need to apply.
Moreover, if Republicans maintain decorum and respect during the process and focus on the candidate’s judicial philosophy and politics, they can score points with a public disgusted by the left’s disgraceful treatment of Judge Brett. Kavanaugh and his family. And the more left-leaning Biden’s nominee, the more moderate Republicans will be in comparison.
Additionally, the further left the nominee, the more justified a “no” vote will be for Republicans in the swing state, allowing them to vote against the nomination on principle, and thus avoid the obstructionist label. Similarly, moderate Republicans or Republican senators from purple or blue states might justify a “yes” vote based on their opinion that a president is entitled to their nomination.
The more extreme Biden’s nominee, the more that position will benefit Republicans when a supposedly far-right nominee finds himself nominated to the Supreme Court by a future Republican president. The same moderate Republicans can point to their vote for Biden’s extremist justice as evidence of the consistency of their position that a president is entitled to his nominee, or whether they are being thrown out of office because of their vote for the nominee of Biden, a stronger senator could be in that office. And if Democratic senators vote en masse against a future Republican nominee, the more squarely the accusation of hypocrisy will hit the more extreme Biden’s leftist nominee.
Nor is it just the fight that will benefit the conservative cause: Elevating a far-left justice to the Supreme Court will advance originalism more than if Biden were to replace Breyer with a milquetoast moderate. This premise may seem counterintuitive because we think of “moderates” in the context of politics and not precedent.
For a Supreme Court decision to be “precedent”, five justices must agree with the result and the analysis. If Biden were to nominate a so-called “moderate,” his vote would match the far left of the High Court and his reasoning would likely be mainstream enough to, at times, move Justice John Roberts or Justice Brett Kavanaugh to join both. other justices on the left to create a majority opinion that binds the lower courts.
Conversely, a far-left judge will also vote with Justices Sonia Sotomayor and Elena Kagan, but could drag her sister justices too far to the left to entice so-called moderate judges to join in the decision. Then either the left side will lose, or the outcome will favor the left position, but the Supreme Court decision will be fractured, with multiple justices writing separately resulting in no binding precedent and only dicta.
Of course, originalism would benefit more from appointing an originalist judge, but that’s not an option now because President Biden is our president and Breyer has tendered his resignation effective upon confirmation of his successor. The choice is therefore between Judge Breyer and another liberal or far-left justice. Stalling in hopes of getting a more palatable Liberal will leave us with Justice Breyer and the need to delay an appointment for three years.
Conservatism would be better served by using Biden’s nomination to remind the public that elections have consequences. The crazier his candidate, the better this point can be made.
Margot Cleveland is a senior contributor to The Federalist. She also contributes to National Review Online, The Washington Examiner, Aleteia and Townhall.com, and has been published in The Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of Notre Dame Law School, where she won the Hoynes Award, the law school’s highest honor. She then served for nearly 25 years as staff law clerk for a federal appeals judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time faculty member at the university and now teaches as an occasional adjunct. As a homeschooled mother of a young son with cystic fibrosis, Cleveland writes frequently on cultural issues related to parenting and children with special needs. Cleveland is on Twitter at @ProfMJCleveland. The opinions expressed herein are those of Cleveland in their private capacity.