In Choosing the Next Justice, Focus Only on Qualifications and Merit

Over the next few weeks, I look forward to examining the list of Supreme Court prospects offered by President-Elect Donald Trump in depth. On first glance, the President-Elect appears to have assembled an outstanding list of conservative legal minds, and offers great hope of finding a worthy replacement for the late Antonin Scalia [see blog].

While I am excited, I can certainly understand why the President-Elect's list causes consternation for those who favor Justices who take more of a so-called “living constitution” approach to Constitutional jurisprudence. While I obviously do not agree with those of a more liberal persuasion, I recognize the philosophical disagreement regarding legal interpretation and the role of the Supreme Court in our republic.

However, I do not understand the peculiar critique of the President Elect's list from the headline writers at USA Today, who titled an article by Richard Wolf, “Trump's 21 potential court nominees are overwhelmingly white, male and from red states.”¹ It is all the more peculiar that after Wolf makes this useless observation to begin his article; he subsequently notes that “[o]nly half went to the nation's top law schools.” Considering that many complain that all eight of the current Justices are law graduates of Harvard and Yale, it seems that the President-Elect did in fact offer a list of Justices with diverse backgrounds, only to have the naysayers contrive a different reason to attack him for not having a diverse enough list.

The Supreme Court is far too important to play left wing's identity politics parlour game with. This should be evident regardless of one's preferences for the next Justice. As the article notes, with the average age of the individuals on President-Elect Trump's list being 53, we may expect the next Justice to sit for “a quarter century or more on the court.” Indeed, Justice Anthony Kennedy has been on the Supreme Court for nearly 28 years and is only 80 years old. Justice Clarence Thomas is in his 25th year on the Supreme Court and is only 68. Our next Justice will play a dramatic role in shaping the future of American law and constitutional interpretation.

The current Supreme Court bench includes three women, five Catholics, three Jews, one black Justice, and one Hispanic Justice. The issues facing the Court do not concern its demographic breakdown, but rather the extremely challenging and serious cases that it will preside over, such as a particularly noteworthy one in the criminal aliens context titled Lynch v. Dimaya, 15-1498 [see article].

I encourage President-Elect Trump to pick the individual he and his advisors determine most likely to be an outstanding Justice who will interpret the Constitution and our laws as they are written. Whether that individual is Judge Margaret Ryan of the U.S. Court of Appeals for the Armed Forces or United States Senator Mike Lee of Utah, my only hope is that the next Justice is able to come close to filling the shoes of the great Justice that he or she will be replacing.

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1. Wolf, Richard, “Trump's 21 potential court nominees are overwhelmingly white, male and from red states,” usatoday.com, Dec. 2, 2016