When it comes to the 201 presidential election, one conservative legal scholar has some advice for the eventual Republican nominee: Target President Barack Obama on his pro-abortion judges and the Supreme Court.
Edward Whelan, president of the Ethics and Public Policy Center and a National Review writer, wrote an essay for Public Discourse as part of its 2012 Election Symposium. The article has Whelan saying the GOP nominee should “welcome the battle over the Supreme Court, determine to fight hard for high-quality justices, frame the argument for why abortion policy should be restored to the democratic processes and commit to select senior legal leaders who fully embrace their goals and priorities.”
“In light of the power that the modern Supreme Court wields in shaping–or misshaping–how the Constitution is interpreted, a president’s Supreme Court appointments are among his most important and enduring legacies. The president elected in 2012 can reasonably be expected to have the opportunity to fill one or two vacancies on the Court. How the Republican presidential candidates would approach this opportunity therefore provides an important measure of their fitness for office,” Whelan says.
Whelan believes the proper role of the courts is a winning issue for the Republican candidate facing Obama.
As this mock memo by a former Obama DOJ judge-picker nicely illustrates, liberals lament that “conservatives have succeeded in defining the debate [over judges]: a judge is either a judicial activist or a conservative.” Conservative discourse about the proper role of judges has “tremendous public appeal,” whereas a nominee’s candid embrace of liberal “living Constitution” rhetoric will seriously jeopardize his nomination.
As a result, the Republican candidate should talk about the kind of judges voters could expect if Obama is replaced.
A Republican president elected in 2012 should be emboldened by the political triumph of judicial conservatism, especially if (as would be likely in the event of a Republican presidential victory) Republicans regain control of the Senate. Senate Democrats may well threaten to filibuster any conservative Supreme Court nominee. But if the White House genuinely has the will to wage a vigorous and extended campaign on behalf of a high-quality nominee, it should be able to defeat a filibuster.
Whelan says the GOP nominee should not be afraid to talk about abortion and the courts. This is the issue on which a GOP candidate could easily boost turnout among pro-life voters — who are hungry for the day when Roe is overturned and legal protection for unborn children can begin to be restored. As he notes:
If a Republican president elected in 2012 has the opportunity to replace Justice Ginsburg (now 78), Justice Kennedy (75), or Justice Breyer (73) with an excellent conservative justice, there is a genuine prospect that the Court would have the five votes needed to overturn Roe v. Wade and restore abortion policy to its proper place in the democratic processes in the states. Given nearly four decades of pervasive media misrepresentations of what Roe held and what overturning it would mean, it is not surprising that many people initially are hostile to its being overturned. But there is ample reason to believe that some elementary education on the matter would dramatically increase public support for overturning Roe.
This is not an issue that Republican presidential candidates can duck. Nor, given the striking increase in pro-life sentiment, should they want to. They instead need to seize the opportunity to frame the issue in a manner that has broad appeal to Americans with diverse positions on abortion policy.
Finally, Whelan encourages the eventual nominee to select top legal staff who embrace similar legal and judicial goals and priorities. Too often, pro-life presidential candidates are influenced by staffers who don’t share the same Constitutional principles. Whelan concludes:
Personnel is indeed policy. It is essential that a Republican president select senior White House advisers (including chief of staff and White House counsel) and leaders for the DOJ–especially for the positions of Attorney General and Solicitor General–who are deeply committed to his goals and priorities on selection of Supreme Court justices and on the operation of DOJ.
By his oath of office, the president commits that he “will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States.” What a president means by this oath depends on his own understanding of what the Constitution means. In setting forth their positions on selecting Supreme Court justices and directing the DOJ, the Republican presidential candidates can offer valuable insights into how well they understand the Constitution and how well-prepared they are to exercise presidential authority.
