Wednesday, February 1, 2017

No Sure Thing

President Donald Trump has fulfilled the one hope that actual conservatives had when some of them voted for him--he has appointed what appears to be a Constitutionalist to the Supreme Court.  Those on the Right are finding little not to like about Judge Neil Gorsuch--and his original nomination to the Federal bench was unanimous in the Senate--with Bernie Sanders, Chuck Schumer and Dianne Feinstein all voting in favor of him.  It would appear that the narrow Conservative majority on the high court is being preserved in the wake of Antonin Scalia's death nearly a year ago.

But those of us who believe in limited government and strict interpretation of the Constitution shouldn't be celebrating just yet.  You see, recent Supreme Court nominees put forth by Republican Presidents tend to be far more unpredictable than those put on the court by Democratic Presidents.  There is never any doubt as to how Ruth Bader Ginsberg, Elena Kagen and Sonia Sotomayor are going to rule on cases that split the court.  Inevitably, they will side with whatever party provides greater control to the central government.  But some "conservative" justices aren't nearly as predictable.

Remember, it was George W Bush appointee John Roberts that not only cast the deciding vote to find the Affordable Care Act constitutional--but he went out of his way to find a legal principle backing up that position which the Obama Administration never actually made before the court (that it is a "tax"--not a "requirement to buy something in the private market").  George HW Bush appointee David Souter actually became a reliable liberal vote on the high court--even after John Sununu guaranteed that he would be a "slam dunk conservative".  And Sandra Day O'Connor would swing her vote after Ronald Reagan put her on the court in the 1980's.

Obviously, these "mis-reads" are due more to Constitutionalists coming to the court with fewer hard-line biases--and a willingness to consider each case on the merits and arguments presented--and not with the notion that the power of the government to control our lives is paramount.  But conservatives shouldn't be counting their "5-4 decisions" before they hatch--if Democrats don't filibuster Gorsuch's nomination for the entire four years of the Trump presidency.

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