With the sudden death of Justice Antonin Scalia, the selection of nominees for the Supreme Court has once again been thrust into the center of the race for the White House. In one sense, it is disappointing that it took a shock like this to focus the electorate’s attention on what may be the single most important Presidential duty. But on an even deeper level, it is tragic that the Supreme Court has acquired so much power that the nomination fights have become the paramount political battles of our present age.

The reader will recall that Matthew Lee Anderson, Jake Meador, and Matthew Loftus took to these “pages” and decried not only the primary support received by Donald Trump and Ted Cruz, but also the very essence of the Cruz campaign. Anderson went so far as to swear off supporting Cruz in a general election against the Democratic nominee, a position Meador and Loftus subsequently defended. In the comments, many readers objected that surely the fact that Ted Cruz would advance better nominees for the Supreme Court than any Democrat, was reason enough to justify consistent Christian conservatives supporting Cruz in the general election. Justice Scalia’s passing demands that we examine this argument more closely.

The Current Nomination Crisis

When Justice Scalia passed, I was immediately struck by twin emotional responses. The first was grief at the loss of a man who was simultaneously a true giant of the American judicial system and an ideological hero of so many conservative students of the law (myself included). Much has already been said to honor his legacy, and I am ill-equipped to add anything of value to those praises, but the fact of the matter is the extent of his influence cannot be overstated. Yet, along with these reflections, I was also immediately struck with foreboding at the gravity of the political moment: the critical fifth vote for so many constitutional issues could swing dramatically to the left. Suddenly one of the most pivotal turning points in American political history had been added into the 2016 campaign. Somehow, the crazy political cycle that had brought The Sanders and Trump Show to the fore was about to be upstaged by the partisan political equivalent of World War III.

The history of Supreme Court nominations is a story of punctuated equilibrium. Due to happy political accident, there has not been a single vacancy on the Supreme Court while the Presidency and Senate were controlled by different parties since Nirvana released Nevermind in 1991. This streak was sure to end sooner or later. Additionally, none of the previous six vacancies would have seriously altered the ideological balance of the Court, while an Obama nominee replacing Scalia would be a massive change. True, Clinton’s replacing White with Ginsburg in 1993 and Bush replacing O’Connor with Alito in 2005 were small shifts to the left and the right, respectively; however, not since the Thomas nomination has any shift of this magnitude been possible.

Of course, this political analysis is in its own sense tragic. If courts were only adjudicating disputes and construing statutes and constitutional provisions based on the text in front of them, the identity of the justices fulfilling this role in our system would be much less significant. However, this kind of jurisprudential modesty championed by Justice Scalia never attracted a majority on the Court at any point in his lifetime.

Still, analyzing the Court on partisan lines gives an incomplete picture. The Supreme Court has long had “Republican” majorities. The last time there were five Democrat nominees serving on the Supreme Court at the same time, man had not yet walked on the moon. But while no recent Democrat nominees ascribe to Justice Scalia’s jurisprudential modesty, the Republican nominees have been something of a mixed bag. While about half have been stalwart conservatives, some GOP nominees have swung far left (Souter, Stevens), and others have cultivated the swing vote persona (O’Connor, Kennedy). If a judicial conservative would have replaced either Justice Kennedy or one of the two Clinton appointees, there was a chance that Justice Scalia’s vision of jurisprudence would have begun to come to the fore in more majority opinions.

However, if Justice Scalia were replaced by a 50-something Obama appointee such a shift would be foreclosed. It would also mean that Democrat Justices would not even need to convince Justice Kennedy to join them. Instead, they would for the foreseeable future have a majority voting bloc that—according to their own judicial philosophy—they would feel free using to radically transform society.

In short, as Justice “Swing Vote” Kennedy has already given the left their victories on abortion and gay marriage cases, those issues are not actually in play with Justice Scalia’s replacement. Instead, it is the cases where Justice Kennedy has joined with the four judicial conservatives where the outcomes may change. Cases involving issues like free speech, religious liberty, and unconstitutional regulatory overreach are where the difference would be most immediately felt. With this in mind, I actually believe that the Republican Senate majority will be encouraged by both their social conservative activist base as well as their Chamber of Commerce donor base to hold the line against confirming any Obama appointee. And if the Senate stands firm, then the next President will almost certainly have a massive role in reshaping the Court for the coming decades.

Voting for President for the Sake of the Court

Which brings us back to the GOP primaries. Supreme Court nominations have long been an issue that has driven Republican voters to the polls and this effect should be amplified by the death of Justice Scalia. Moreover, ensuring a good replacement Justice could depend on who emerges among the top three Republican contenders. Trump, Cruz, and Rubio are not equally good bets.

As with every other issue of substance, Donald Trump has been all over the place. On the one hand, he has praised his sister, Judge Maryanne Berry, who when she served on the Third Circuit Court of Appeals wrote a strident opinion rejecting a partial birth abortion ban as a desperate attempt to undermine Roe vs. Wade. However, in the most recent debate, Trump named Diane Sykes and Bill Pryor, two conservative favorites, as his potential nominees. He could very possibly pick “tremendous” justices or he could make a “YUUUUUUGE” mistake.

In contrast, Ted Cruz is a sure thing. As a former Supreme Court clerk, Cruz would almost certainly nominate judicial conservatives of the highest caliber and would not shrink from any of the knock-down, drag-out confirmation battles. Cruz’s fans, encouraged by his top three finishes in each of the first three states, are sure to continue to highlight this issue as he fights towards the nomination.

Marco Rubio’s case on judges is a little weaker than Cruz’s but it is far stronger than Trump’s. It may be unfair to call Rubio an “establishment” candidate, but he is certainly a much more traditional adviser-managed candidate than either Trump or Cruz. Accordingly, there is a small chance that his advisers will tell him that he needs to put forward a so-called stealth candidate who could explode in his face the way Justice Souter did for George H.W. Bush. Indeed, several Rubio supporters I know have acknowledged that they would trust this duty to Cruz over Rubio, but think that Cruz will lose to the Democrat while Rubio will win.

In sum, its hard to pick a clear best course of action for those concerned about the future direction of the Court. If I had to assign semi-arbitrary odds that each candidate would successfully nominate a Scalia-style Justice to the Court once elected president, I would give Cruz 99.5 percent, Rubio 95 percent, Trump 40 percent, Hillary zero percent, and Sanders zero percent. But, the general election viability question certainly complicates the strategic decisions facing voters in the coming primary elections.

When we get to the general election, it will be much less complicated. Judges are one key reason why I disagree with those who say that their Christian convictions will prevent them from voting for either Trump or Cruz in the general election should one of them capture the GOP nomination. As much as I may disapprove of Trump’s personal character and policy positions (and I do on both counts), there is a chance that he will nominate someone good to the Supreme Court. With either Democrat, that will simply not be the case.

Conservatives may face a difficult choice this November. The character of the Republican nominee may be such that it may be tempting to abstain on principle. However, when it comes to the future of the Supreme Court, the choice will be a simple matter of math: R > D.

Featured image via: https://commons.wikimedia.org/wiki/File:Justice_Antonin_Scalia_Speaks_with_Staff_at_the_U.S._Mission_in_Geneva_(2).jpg

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Posted by Keith Miller

Keith Miller is an Assistant Solicitor General in the Federalism Unit of the Arizona Attorney General's Office. He is married and has four children. You can follow him on Twitter.

  • Jeff Hart

    I appreciate this argument, and in many ways, I’m inclined to agree. But at the same time, I think we need to wrestle with Matt’s critique of Cruz more thoroughly. What is the balancing point between repudiating a Cruz-style instrumentalization of the church for political ends and fulfilling our obligation to influence consequential political appointees through our vote? I’m not sure I have the answer, but I think that’s the question we need to be asking.

    • Keith Miller

      Matt’s piece does deserve a more thorough rebuttal and I’ve made several runs at writing such a piece, but my efforts thus far have petered out. Allow me to ask you a clarifying question: What, precisely, is wrong about “instrumentalizing” the Church for political ends? Are Christians supposed to be political pacifists who eschew any attempt to weld political power? Is the Church a particular institution that ought not be sullied with base political machinations?

      • Jeff Hart

        Thanks for the questions. I think the answer has to do with confusing means and ends. The church does not exist to elect Republicans or conservatives to office (or Democrats/liberals, for that matter). It exists to build the Kingdom of God. Certainly, political engagement is inherent in that endeavor, but only as a means, not an end in itself. Cruz seems to play at a sort of Christian identity politics, coopting his Christian faith to garner votes, rather than allowing his Christianity to lie latent (to borrow from Lewis) and shape his political convictions more subtly. In the examples Matt cited and in several since, Cruz seems to be *using* the church as a means to fulfill his political ambitions, not caring for it as a body, however much his ambitions may line up with traditional Christian convictions. The objection is simply that the church ought not be *used* for any purpose, but cared for as an organism, the Body of Christ.

        • Keith Miller

          Jeff, I’m still struggling to get past the Kantian bumper-stickers here. Is it “using the church” for me to talk to the people I go to church with about politics and who I think they should vote for? I probably wouldn’t have known Mr. Smith but for the fact that we share a pew, so, for fear of instrumentalizing the church, should I only campaign for candidates among strangers or people I meet in other contexts?

          I believe that the church is composed of believers who come together to worship the Risen Lamb and spur each other on to good works. I also believe that these same believers ought to seek the good of their temporal city and nation. These ends are differentiable, but the same believers seek both of these ends and there will be many times when the lines blur. At work, a believer may share the gospel with a colleague. At school and home, a child’s religious instruction may fit him to be a better citizen. There is no reason why these two kinds of human endeavors should be hermetically sealed off from one another.

          Perhaps a metaphor would help. Imagine, a small high school has both a football team and a basketball team where many of the same boys letter in both sports. If the football coach gets his team in fantastic physical condition through some agility drill, that would naturally carry over to basketball season. Would we condemn the basketball coach for “instrumentalizing” football practice if he told his players to use the skills they had acquired during football’s Fall during Winter’s basketball season?

      • “Matt’s piece does deserve a more thorough rebuttal and I’ve made several runs at writing such a piece, but my efforts thus far have petered out.”

        I think this is God telling you that you should just give up and agree with me already, Keith. :

  • Donald Cherry

    What about Maryanne Trump Barry? Trump said she would be a fantastic choice for the Supreme Court. She is also ok with the legal killing of babies up until the moment they leave their mothers womb.

  • wmrharris

    i would suggest that the best bet is to have the current President make the call. If the nomination is postponed to the next president, then the appointment necessarily becomes part of the political campaign. This politicization of the court undermines its moral authority, as evidently Mr Miller would like. Let’s be cautious here: if the courts are seen purely as creatures of politics, they lose their status in the eyes of the public. What is worse, as political creatures they look more like advocates of certain pressure groups — such already is the case too often at present.

    So no, Mr Miller gives exactly the wrong advice. We want and need a good court, not a partisan one.

    • Keith Miller

      Mr. Harris, if you wish to maintain the position that the Court is currently non-politicized and that another Obama appointee would further stem the tide of politicizing the Court, please point me to a single close decision where either of the previous Obama-appointed Justices voted in a way that cheered the GOP. I’ll wait.

      • wmrharris

        Of course the Court is politicized, the question is whether that is a good to be embraced, or a flaw to be struggled against. My position would be that of wanting the court to move to a more neutral corner. Rather than cheering the partisan souls of the left or the right, we should be encouraging the selection of a justice who shows a capacity to consider multiple sides, weigh differing opinions and even vote against one’s own sentiments when wisdom decides. That’s scriptural; this swearing to one’s own hurt. This sort of prudent consideration strikes me as the best path to a sort of secular wisdom.

        Moreover, one can see that foreclosing any consideration of a candidate for the sake of some possible future deprives us of a needed conversation. We ought to be about raising the bar for candidates, not making them into extensions of political hackery — we have plenty of that already.

        All this said, i understand why political considerations may enter in; for those engaged in the political sphere, this is our bread and butter. Nevertheless, as Christians we may also want to think about what builds the long-term common good, this being a broader consideration than partisan identity.

    • James McClain

      Since when has the nomination process not been politicized? While the justices are theoretically apolitical in their analyses of the law, the process in placing them is often politics in all its messiness. And “pressure groups”? Lobbies right and left file their standard approvals or rejections with virtually every nominee. If you don’t think politics is involved when a lot is on the line, just ask Clarence Thomas.

  • I agree with your analysis. The political party of the new president will determine the direction of the court. We need a prudent government so that Christians can live peaceful and holy lives while spreading the gospel.

  • mintap

    “the single most important Presidential duty”

    The Court should not have so much power. It should not be the single most important duty. I think errors in Marbury v. Madison elevated the unelected minority of 9 (or so) Justices too high and too far beyond the intended checks and balances.

    Our primary authorities should be more immediate: the family, the local church, our local communities,

  • Keith – Thanks for this. Here’s my main question: Your argument is that functional realities of our current political situation necessitate Christians voting in a certain way so as to prevent certain disastrous outcomes. But this seems to assume an understanding of voting that sees it as being a kind of mandatory act in which we choose to support whichever side is less objectionable. And it’s that approach to voting that I question. If that’s all that voting is, then do I have to pick a side to support if the choices are Pol Pot or Stalin? Put another way, if a vote for Trump is justified because his SCOTUS appointments will be better than Hillary’s, what sort of voting behavior *can’t* be justified? There will, presumably, *always* be one candidate who is less depraved than the other. But am I obliged to support them for that reason?

    To put it bluntly, is there any circumstance in your mind where each candidate would be bad enough that a Christian would be justified in choosing not to vote? Or to ask the same question in another way, is voting simply a negative act in which we choose which lesser evil we want to have in power or should voting be seen as a more positive political act in which I am identifying myself with the candidate and saying “this man is fit to govern?”

    • Keith Miller

      Jake, in your article you wrote that a Christian’s civic responsibility begins in the Christian home rather than in the Presidential ballot box, but you also acknowledged that national elections do effect local communities. Granting both of these propositions, why *not* vote for whichever is the better of the two options? Voting does nothing to prevent you from caring for your home and local community. To extend the analogy I made elsewhere in the comments, just because our high school cares about winning the cross-town rivalry game the most, doesn’t mean the team should avoid playing the other games on the schedule.

      Voting is the democratic exercise of governmental power. To govern is to choose and choosing not to choose is a type of choice–it is the choice to live under the authority of whoever the majority of your fellow voters select. Yes, there may be circumstances that would justify rejecting all available choices, but in that case the Christian’s duty would be something in the line of Exit or Revolution, not mere Non-Voting. Opting out of the selection process while continuing to live under that regime is tantamount to a declaration of the proposition that “either of these candidates is fit to govern.”

      • Keith – Probably not the response you’re looking for, but when I read “would be something in the line of exit or revolution,” I don’t take that as a reductio. I actually agree. Why do you think I’m so friendly to the BenOp? At its best, it has the potential to be a Christian revolution, which is to say a revolution defined by Christian charity, fidelity to nature, and the application of Christian wisdom. If saying “I can’t vote for either of them,” makes me a revolutionary I’m totally OK with that.