Many of you are aware that the next president is likely to appoint as many as three justices to the United States Supreme Court. Four of the current justices are over 70 years old: Justice Stephen Breyer is 77, Justices Antonin Scalia and Anthony Kennedy are both 79, and Justice Ruth Bader Ginsburg is 82.
Given that and the fact that the Supreme Court’s constant overreach, as in recent decisions like Obergefell, is threatening the balance of power envisioned by our Founders, it was encouraging to see the GOP candidates focus on the issue in last night’s debate. Here are the highlights:
GOV. HUCKABEE: The Supreme Court in a very, very divided decision decided out of thin air that they were just going to redefine marriage. It’s a decision that the other justices in dissent said they didn’t have, and there wasn’t a constitutional shred of capacity for them to do it.
I thought that everybody here passed ninth-grade civics. The courts cannot legislate. That’s what Roberts said. But heck, it’s what we learned in civics.
The courts can’t make a law. They can interpret one. They can review one. They can’t implement it. They can’t force it.
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GOV. BUSH: We need to make sure that we have justices … with a proven experienced record of respect for upholding the Constitution. That is what we need. We can’t have — the history in recent past is appoint people that have no experience so that you can’t get attacked.
And that makes it harder for people to have confidence that they won’t veer off …
I’m willing to fight for those nominees to make sure that they get passed. You can’t do it the politically expedient way anymore. This is the culture in Washington. You have to fight hard for these appointments. This is perhaps the most important thing that the next president will do.
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SEN. CRUZ: [W]e’re frustrated as conservatives. We keep winning elections, and then we don’t get the outcome we want. And let me focus on two moments in time.
Number one, in 1990, in one room was David Souter, and in another room was Edith Jones, the rock-ribbed (ph) conservative on the Fifth Circuit Court of Appeals. George Herbert Walker Bush appointed David Souter.
And then in 2005, in one room was John Roberts, in another room was my former boss, Mike Luttig, the rock-ribbed (ph) conservative on the Fourth Circuit Court of Appeals. … George W. Bush appointed John Roberts, and let me give you the consequences of that.
If, instead, President Bush had appointed Edith Jones and Mike Luttig, which is who I would have appointed, ObamaCare would have been struck down three years ago, and the marriage laws of all 50 states would be on the books. These matter; and I fought to defend the Constitution my whole life. … and I will as president as well.
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BUSH: the simple fact is that going forward, what we need to do is to have someone that has a longstanding set of rulings that consistently makes it clear that he is a focused, exclusively on upholding the Constitution of the United States so they won’t try to use the bench as a means to legislate.
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CRUZ: It wasn’t that the President Bushes wanted to appoint a liberal to the court, it’s that it was the easier choice. Both David Souter and John Roberts, they didn’t have a long paper trail. If you had nominated Edith Jones or Mike Luttig you would have had a bloody fight, and they weren’t willing to spend political capital to put a strong judicial conservative on the court
I have spent my entire life, starting from clerking for Chief Justice William Rehnquist on the United States Supreme Court, one of the most principled jurists. We have an out-of-control Court, and I give you my word, if I’m elected president, every single Supreme Court justice will faithfully follow the law and will not act like philosopher kings … imposing their liberal policies on millions of Americans … who need to be trusted to govern ourselves.
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MODERATOR: Governor Huckabee, I want to bring you in very quickly if you could. Will you have a litmus test when it comes to appointing Supreme Court nominees?
HUCKABEE: You better believe I will, because I’m tired of liberals always having a litmus test and conservatives are supposed to pretend we don’t. Well let me tell you what mine would be.
Number one, I’d ask do you think that the unborn child is a human being or is it just a blob of tissue? I’d want to know the answer to that. I’d want to know do you believe in the First Amendment, do you believe that religious liberty is the fundamental liberty around which all the other freedoms of this country are based?
And I’d want to know do you really believe in the Second Amendment; do you believe that we have an individual right to bear arms to protect ourselves and our family and to protect our country? And do you believe in the Fifth and the 14th Amendment? Do you believe that a person, before they’re deprived of life and liberty, should in fact have due process and equal protection under the law? Because if you do, you’re going to do more than defund Planned Parenthood.
One final thing. I’d make darn sure that we absolutely believe the 10th Amendment. Every governor on this stage would share this much with you. Every one of us — our biggest fight wasn’t always with the legislature or even with the Democrats. My gosh, half the time, it was with the federal government who apparently never understood … that if it’s not reserved in the Constitution, then the 10th Amendment says it’s left to the states. But somebody forgot to send a memo to Washington.
Governor Bobby Jindal also addressed the issue on the earlier debate. Here is what he said:
The reality is conservatives have not been willing to stand up for our beliefs, unlike the liberals — look, you never worry about where the Democratic judges are going to vote, it’s always the conservatives. You’ve never had a Democratic judge wake up and say, surprise, I’ve evolved, I’ve become a conservative.
It’s always the Republicans, because we have presidents that try to find judges with no records, no rulings, no writings. I’ll tell you, I am going to have a litmus test. For judges, I’m going to find judges that are conservative, judges that are going to be pro-life, judges that are going to follow “The Constitution,” judges, by the way, that are going to follow the American law, not international law.
They’re not appointed there to interpret international law, they’re there to apply “The United States Constitution.” Judges understand, their job is not to write law. If they want to write law, they should run for the Senate or the House.
It’s time for a Republican president as the next commander in chief; I will do as the Democrats have done. I will appoint bold judges that are actually consistent with my values that will be conservatives and enforce the law.