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Most important issue of 2016: The judiciary

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When the new president is sworn in on January 20, 2017, Chief Justice John Roberts, who administers the oath, will be 61.

His colleagues, on that day, will be mostly older. Justice Ruth Bader Ginsburg will be 83. Justices Anthony Kennedy and Antonin Scalia will be 80. Justice Stephen Breyer will be 78.

The “in their prime” justices will be Justice Clarence Thomas and Justice Samuel Alito, 68 and 66, respectively. The “kids” are Justices Sonia Sotomayor and Elena Kagan, who will be 62 and 56 when the new president greets them at his or her first State of the Union.

Long may the nine all live, happy and full of energy, not frail but full of vigor. But an inescapable reality is that significant change is coming soon to a closely divided Supreme Court.

This week, Sens. John Cornyn of Texas and John Thune of South Dakota told me on my radio show that the GOP Senate majority will not be restoring the judicial filibuster rule shattered by Harry Reid and his wrecking ball tenure as Senate Majority Leader. Presidential nominations are going to be subject to simple majority votes come 2017.

The majority vote concept hasn’t been applied to a Supreme Court nomination, but count on it. The Democrats broke the rule and it is broken. There is no upside in attempting to “repair” the filibuster as applied to presidential appointees. The rule that required 60 votes was never in the Constitution to begin with, and its abuse was far beyond the limited utility of increasing a minority’s voice in the selection of judges and officials.

Thus a new Republican president has a good chance of selecting three or more originalists during the next eight years. And a Democrat — there would be no essential difference between Bernie Sanders and Hillary Clinton justices — can forever unhinge the Republic from the more restrictive vision of the Framers without using the process for amending the Constitution.

Actuarial tables being what they are, the next president is going to be more significant for his or her court appointees than either Presidents Bush or Obama. That’s because they will have at least one full term of straight majority votes.

There are presently 77 vacancies on the federal bench, nine of those for coveted appellate judgeships of enormous power and consequence. Senate Majority Leader McConnell isn’t going to fill most of those or any others that occur from death or retirement. That’s called “payback” and Harry Reid deserves it for wrecking the rule.

I for one am glad the old ways are gone. They were not “originalist” in origin and they operated to in fact keep originalists off he bench while pushing forward judges of either unknown or liberal views. Not so with the Reid rule.

If the GOP wins the White House — a big, big “if,” that one — the new president will be able to restore some semblance of restraint to a judiciary that shrugged it off long ago. Consistent, thoughtful selections of men and women of high character and known views about the Constitution will be possible. Those committed to restraint in the use of judicial power, and recognition of the competing authorities of the executive and legislative branches and of the states, can rise to the bench.

High stakes indeed. All those appointments should be top of mind for voters in Iowa and New Hampshire. The GOP has to win in 2016, or the Supreme Court and indeed the entire judiciary becomes a permanent conveyor belt of collectivist whims.


This column was originally posted on


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