For right-wing advocates, big conservative wins in the Supreme Court’s recently completed term have only confirmed the importance of electing a president in 2016 who will give them more justices in the mold of Samuel Alito and John Roberts. The Roberts and Alito nominations, and the conservative majority created by their confirmations, represent the triumph of a decades-long push by right-wing funders, big business, conservative political strategists, and legal groups to take ideological dominion of all levels of the federal judiciary.
Right-wing groups have long made attacks on the federal judiciary a staple of their rhetoric. Many claim America’s decline began with Supreme Court rulings against required prayer and Bible readings in public schools in the 1960s. Roe v. Wade, and more recently, judicial rulings in favor of marriage equality, have been characterized as “judicial tyranny” and “judicial activism.” Of course right-wing legal groups have been pushing hard for their own form of judicial activism, and have pushed Republican presidents to nominate judges they can count on.
As Jeffrey Toobin notes in a recent profile of presidential hopeful Sen. Ted Cruz in the New Yorker,
Conservatives like Cruz never stopped denouncing liberals for their efforts to use the courts to promote their ideological agenda, even as they began to do much the same thing themselves. The heart of Cruz’s legal career was a sustained and often successful undertaking to use the courts for conservative ends, like promoting the death penalty, lowering the barriers between church and state, and undermining international institutions and agreements.
Right-wing activists are proud of what they have accomplished, as Richard Land, long-time leader of the Southern Baptist Ethics and Religious Liberty Commission, told National Journal’s Tiffany Stanley. As Brian Tashman reports in RWW, Land “waxed nostalgic for the days when President Bush was in office…and especially for Bush’s commitment to nominating ultra-conservative federal judges.”
“Alito and Roberts are the gifts that keep on giving, and we would have gotten neither one of those without our involvement,” Land said, predicting that Roe v. Wade will soon be “thrown onto the ash heap of history.”
…The Supreme Court’s ruling this year in the Hobby Lobby case shows the Religious Right’s strong focus on the judiciary is paying off. And Tony Perkins of the Family Research Council told Stanley that conservatives will continue to use the courts as part of their strategy to keep “the barbarians at bay.”
But in spite of their wins, and their success in creating the most pro-corporate Court since the New Deal, right-wing activists are nervous that some of their big wins, like Hobby Lobby and Citizens United, were 5-4 decisions. They want to pad their majority and continue their march to remake America via the courts.
Since federal judges have to be confirmed by the Senate, right-wing groups are also using the Supreme Court in 2014 Senate campaigns. An anti-choice PAC, Women Speak Out, followed the Hobby Lobby ruling almost immediately with attacks on Mark Pryor and other Democrats for not having supported the confirmation of Samuel Alito.
On the day of the Court’s decisions in Hobby Lobby and Harris v. Quinn, North Carolina House Speaker Thom Tillis, a Republican, who is challenging U.S. Sen. Kay Hagan, a Democrat, tweeted “Today’s SCOTUS rulings were a win for our 1st Amendment freedoms, a loss for Hagan, Obama, & DC bureaucrats.”
Cleta Mitchell, a lawyer who represents right-wing groups, told the Washington Post, “These Supreme Court decisions, it’s a reminder to people on our side of the aisle of the importance of the court, and then the importance of recapturing the Senate.”
Religious Liberty ‘Hanging by a Thread’
Right-wing pundits and organizations are already ramping up their rhetoric on judges as a 2016 presidential campaign issue, with many touting the 5-4 decision in Hobby Lobby as evidence that religious liberty is “hanging by a thread.”
Rush Limbaugh went on a tirade against Hillary Clinton after she criticized the Hobby Lobby ruling:
Can I tell you the truth about the Hobby Lobby ruling? We're in such dangerous territory in terms of losing our freedom that we cheer when five out of nine people uphold the Constitution. We're not advancing anything, folks. We are barely hanging on here. … And here comes Hillary Clinton thinking this decision is a step toward the kind of anti-women policy seen in extremist undemocratic nations is outrageous.
The woman is either a blithering idiot or a total in-the-tank statist, maybe a combination of the two. But this is not a step toward anything. This is a temporary halt in the onslaught toward totalitarianism.
We're just barely hanging on. We cheer! We conservatives stand up and cheer when we manage to get five people to see it the right way. "Oh, my God! Oh, Lord! Thank you so much, Lord. You saved another day." Five people out of nine, five said the Constitution means what it says. The troubling thing to me is the four people that didn't! Liberty and freedom are hanging by a thread here!
That theme was echoed by the Archdiocese of Washington’s Msgr. Charles Pope:
“OK, We won. But the Hobby Lobby vote should have been 9-0. Wake up, America. Your liberty is on the line!”
It is simply outrageous that four Supreme Court Justices, and many Americans, cannot see the clear and offensive proposition of the Government in this regard…..We won today, but barely. It should have been 9–0. Wake up, America; your religious and other liberties are hanging by the thread of one vote.
Former presidential candidate Gary Bauer of American Values weighed in in similar fashion:
“While we celebrate this victory, the fact remains that four justices on the Supreme Court, including the two appointed by Obama, evidently share his narrow view of America's first freedom and were willing to trample the religious liberty of millions of Americans in order to advance their radical pro-abortion agenda.
This narrow decision, with four liberal justices eager to go the wrong way, is a stark reminder to every man and woman of faith that their religious liberty is hanging by a thread.
The Court as Right-Wing Campaign Issue for 2016
Right-wing pundits and presidential candidates frequently use the federal judiciary as an issue to excite base voters. Back in 2012, one of the most effective things Mitt Romney did to shore up his weak support among conservative activists was to name a judicial advisory team headed by Robert Bork. That year, Terence Jeffrey, who worked on Pat Buchanan’s presidential campaigns and has written for right-wing publications, wrote:
Three of the nine justices on a U.S. Supreme Court that has decided many significant issues by 5-4 votes over the past decade will turn 80 years of age before the 2016 presidential election.
The three justices are Antonin Scalia, an anchor of the court’s conservative wing, Ruth Bader Ginsburg, an anchor of the court’s liberal wing, and Anthony Kennedy, who is often the decisive swing vote in 5-4 opinions….
Bobby Jindal is among the crop of potential 2016 presidential candidates who is making an issue of the courts. In an interview with a conservative Christian blogger during last month’s Iowa state Republican convention, Jindal suggested if Republicans take control of the Senate this year they would block additional nominees. Asked about federal judges overturning state marriage bans for same-sex couples, Jindal said, ““This shows you the importance of the November elections. We don’t need this President putting more liberal judges on the bench.”
It is important, whether you are a lawyer or not, to understand what it means for the courts to actually apply the Constitution as opposed for them just to create new laws or to read things and just decide they are going to contradict what the other two branches of government did. We’ve gotten away from these three separate but equal branches of government and instead we’ve got these activist judges who are overreaching. We have to recognize the problem for what it is,” Jindal added.
He emphasized the importance of elections and their impact on judicial confirmations because sometimes Constitutional amendments will correct the problem, and other times federal judges will just overrule them.
Mike Huckabee has seemingly made attacks on the judiciary a centerpiece of his campaign. In May, he called for the impeachment of an Arkansas judge who ruled in favor of marriage equality. Last year, urging Senate Republicans to block an Obama appeals court nominee, he said, “Judges can linger on for decades after a President leaves office, and a bad one can wreak havoc that echoes down the ages.”
Meanwhile, presidential contender Rick Santorum and the right-wing Judicial Crisis Network are attacking Chris Christie for not sufficiently making right-wing ideology a litmus test for his state judicial appointments. Santorum told Yahoo News earlier this month, “To see a record as abysmal as Gov. Christie’s record in the state of New Jersey, I guarantee you that will be a red flag for most voters in the state of Iowa, but also most voters in the Republican primary.” (Earlier this month, while in Iowa campaigning for Gov. Terry Branstad, Christie said he supports the Court’s Hobby Lobby decision; he had initially declined to say whether he supported the decision.)
The Judicial Crisis Network has also slammed Christie, saying his failure to “deliver on judicial activism” may have doomed his 2016 presidential hopes. It has created an entire website devoted to trashing Christie’s judicial record to conservative voters: www.christiebadonjudges.com. In June, Fox News ran an op ed by JCN’s Carrie Severino using Christie’s alleged failure to appoint right-wing ideologues to the state supreme court as a way to discredit him with conservative activists.
Christie didn’t deliver on judicial activism. Has he doomed his 2016 bid?
If a candidate’s tenure as governor is his road-test for the presidency, Governor Chris Christie just flunked.
As a candidate for governor, Christie talked the talk on judges, vowing to "remake" the New Jersey Supreme Court and to transform the most activist court in the nation into one that operates under the rule of law.
Despite having the opportunity to appoint four of seven justices on the court since taking office, Christie has repeatedly nominated individuals with no discernible judicial philosophy….
And while elected representatives must stand for re-election every few years, federal judges sit for life.
Today’s nominee could still be playing the same tricks in 2050 or beyond. That is why the issue of judges matters so much during presidential primaries and caucuses….
Right-wing advocates have been talking for a while about how important it is to their judicial plans not just to elect a Republican, but to elect a Republican committed to making the kind of Supreme Court nominations they want. In February, right-wing activist Mychal Massie complained that many justices nominated by Republican presidents over the past few decades did not turn out to be ideological warriors (though that is hardly the case with more recent nominees).
But forward-thinking conservatives are keenly aware that we must be concerned about the future as well, and not just because of Obama. Based on age alone, one of the primary areas of concern is that the person elected president in 2016 will potentially have at least four Supreme Court Justices to replace. Two of the potential four are liberals, so a Democrat president would simply be replacing liberals with liberals, ergo, it would be a wash. But of the other two the one is a solid Constructionist, and the other is a swing vote who has, in recent years, ruled based on Constructionism enough times that we should be concerned if a Democrat president replaces him….
As you can see, the potential for the political complexion of the High Court to be changed for decades to come should be of critical concern if a Democrat wins the presidency in 2016. But, it is myopic betise on an epic level to even for an instant believe we need not be concerned if a Republican wins. Especially if it is an establishment Republican….
With Karl Rove and Reince Priebus pulling the strings of the GOP and RNC, the Republican Party resembles a RINO theme park more than it does the Party true conservatives have supported.
With them controlling things from behind the curtain it is not just critical that the next president be “conservative” but he/she must be a legitimate conservative whose conservative bonafides are unimpeachable. It does conservatism no good to elect a Mitt Romney, John McCain, or Jeb Bush type. The 2016 election will place in office a person with the potential to change the face of SCOTUS for many decades to come. And as John Boehner, Eric Cantor, Mitch McConnell, et al. have showed us — it’s not just Democrats who are betraying us.
Religious Right leaders will certainly be keeping the issue of judicial nominations at the forefront of the 2016 campaigns. This week, George O. Wood, who heads the Assemblies of God denomination, wrote:
Moreover, we should encourage voting because elections have consequences. One of those consequences is that the president nominates judges who serve on district and appellate courts and on the Supreme Court. The U.S. Senate must then approve those nominees. It is a sad fact that no evangelical sits on the Supreme Court—even though evangelicals constitute a very large faith community in America. I suspect that at present no evangelicals could even be nominated or confirmed to a federal bench because they hold views that are pro-life and pro-traditional marriage. People in our Fellowship need to remember that when they cast a ballot, they effectively decide who will sit as a federal judge. Indirectly, they are casting a vote for or against a robust understanding of the free exercise of religion.