The Senate Should Suggest This Supreme Court Nominee Instead

The Senate Should Suggest This Supreme Court Nominee Instead

The Senate should take its advise and consent duties seriously. That means suggesting a far better Supreme Court nominee than Merrick Garland.
Ben Weingarten
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Republicans should stop being reactive in the face of the progressive Democratic Party for a change and instead take a page out of Mike Tyson’s playbook and punch the Left in the mouth first.

Politics and ideology dictate that the time is ripe for the GOP to turn the table on the Democrats and use their advisory prerogative under Article II, Section 2, Clause 2 of the Constitution to do something bold, even if only symbolic: Push for the appointment of Judge Janice Rogers Brown to the Supreme Court. While the president is singularly responsible for appointing Supreme Court justices, nothing precludes the Senate from using its advisory power to suggest its own favored nominees.

Now, I hold no illusions that President Obama would ever seriously consider Judge Brown’s nomination, in spite of her eminent qualification as a sitting judge on the second-highest court in the land, the U.S. Court of Appeals for the DC Circuit. But on several grounds the public case should be advanced anyway.

Four Reasons to Go Bold or Go Home

First, the notion that the Senate is not fulfilling its constitutional duties or obstructing the president will be neutralized if instead of just vowing to fight tooth and nail to block the president’s appointees, the Senate puts forth its own. Who will the real obstructionist be when the Senate is not just serving as a negative check on the president, but positively inserting itself into the appointment process?

Second, given that the Left outwardly claims it believes in “diversity”—not on an ideological but on an identity basis—opposition to the eminently qualified Brown would illustrate its hypocrisy. The dirty secret, of course, is that the Left’s fixation on skin pigmentation, chromosomes, and the wisdom of Latina women, as President Obama put it, is actually only of superficial importance. Only ideology truly matters to the Left. Judge Brown takes the race and gender cards off the table and lays bare this fact.

Third, in an election cycle in which conservatives have lost all faith in their putative representatives, publicly endorsing Judge Brown would hearten the base. It would show that regardless of the true ideology of the Republicans in power—for whom Judge Brown’s dogged fidelity to individual liberty and private property rights is likely somewhat anathema—they will be responsive to their constituents. Conservatives simply cannot bear the thought of another appointee who does the progressives’ bidding and ensures a generation of republic-terminating Obamacare decisions. Why not energize us?

Only ideology truly matters to the Left. Judge Brown takes the race and gender cards off the table and lays bare this fact.

Fourth, the very idea that the Senate would push its own favored appointee or slate of appointees, though surely to be characterized as brazen and unprecedented, would symbolically represent a shift of power from the executive back to the legislative branch of government. The only reason this one vote is so critical today is because Congress has been derelict in its duty to the American people, ceding power to the Supreme Court as the default venue for adjudicating almost every major issue, from health care to immigration to marriage.

For the Senate to actually use its advise and consent prerogative in the way outlined—demanded by the progressive onslaught of the last century—would not only shift power away from the executive branch, but indirectly to the judicial branch, given Brown’s libertarian philosophy.

The Legislative Branch Needs to Get Back In the Game

The Republican push for appointing Judge Brown therefore would serve as a symbolically powerful rebuke of the Obama administration and re-assertion of legislative authority, a Trump-like political tactic out of character for the political class and thus heartwarming for the party’s conservative base and perhaps a defining move in the 2016 election both in the race for the presidency and to retain congressional control.

The Republican push for appointing Judge Brown would serve as a symbolically powerful rebuke of the Obama administration and re-assertion of legislative authority.

It would also reflect an acknowledgment that while, yes, presidents have historically been given great deference in their appointments to the Supreme Court, the Democrats’ own violations on this count must have consequences, and more importantly that the legislative branch has constitutional remedies for restoring a balance of power in government. It is worth accepting that the politicization of presidential appointees is now a fact of life. Politics ain’t beanbag.

On a substantive level, Brown’s commitment to protecting and preserving the principles enshrined in the Declaration of Independence and Constitution would make her a bulwark against a state whose exponential growth continues to diminish our freedom. Together with Justice Clarence Thomas, Judge Brown would form the most dynamic classical liberal duo in the history of modern jurisprudence.

Democrats would howl, of course. But Republicans ought to draw a clear contrast between ideologies. Democrats believe that government’s powers are positive and unlimited, based on a belief that words and thus laws mean different things at different times and under different circumstances. Republicans should believe government’s powers are negative and limited—to protect individual liberty from among other things government itself—and that the only rational basis for adjudication is what the Founders said and meant when they wrote the Constitution and Declaration of Independence. If indeed Republicans only differ with conservatives on tactics, not ideology, they should prove it.

A Message to Democrats

President Obama himself gave perhaps the strongest endorsement of all in favor of Judge Brown. In 2005, he felt compelled to deliver an address firmly opposing her nomination to the DC Circuit Court of Appeals. Then-senator Obama argued Brown was a political activist masquerading as a judge, who held an “unyielding belief in an unfettered free market” and believed that the economic intervention of Franklin Delano Roosevelt during the Depression was unconstitutional (the Supreme Court’s own concurrence with Judge Brown notwithstanding).

In other words, Judge Brown is the antithesis of the type of judge Obama would ever appoint. A president who has flouted the Constitution with executive orders and fundamentally transformative legislation deserves a taste of his own medicine. Let the Democrats overplay their hand with faux outrage.

Short of such a bold stroke by the Republicans, in the final analysis, the Senate’s advice should be very simple: Go pound sand, Mr. President.

Ben Weingarten (@bhweingarten) is a writer, podcaster and media consultant. You can find his work at benweingarten.com. In 2015, he was selected as a Publius Fellow to the Claremont Institute.
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