Written by Judge Napolitano
When Donald Trump started running
for the Republican nomination for president in June 2015, he began by attacking
the Republican establishment in Washington, and he began his attack by calling
the establishment "the swamp."
His real target was the permanent
government and its enablers in the legal, financial, diplomatic and
intelligence communities in Washington. These entities hover around power
centers no matter which party is in power.
Beneath the swamp, Trump argued,
lies the deep state. This is a loose collection of career government officials
who operate outside ordinary legal and constitutional frameworks and use the
levers of government power to favor their own, affect public policy and stay in
power. Though I did not vote for Trump -- I voted for the Libertarian candidate
-- a part of me rejoiced at his election because I accepted his often repeated
words that he would be a stumbling block to the deep state and he'd drain the
swamp.
On Monday
night, he rewarded the swamp denizens and deep state outliers by nominating one
of their own to the Supreme Court.
Here is the back story.
The late Justice Antonin Scalia
-- my friend during the final 10 years of his life -- and his neighbor and
colleague Justice Anthony Kennedy often remarked to each other during the Obama
years that each would like to leave the Supreme Court upon the election of a
Republican president. Scalia's untimely death in February 2016 denied him that
choice, but Kennedy bided his time.
When Trump was elected president, Kennedy told friends
that he needed to await Trump's nominee to replace Scalia to gauge whether the
judicially untested Trump could be counted upon to choose a nominee of
Kennedy's liking and Scalia's standing.
Trump knew Kennedy's thinking, and that guided him in
choosing Neil Gorsuch for Scalia's seat. Gorsuch believes in the primacy of the
individual and natural rights and is generally skeptical of government
regulators. He is also a former Kennedy clerk.
So the Gorsuch selection was intended
to serve two purposes. The first was to pick a Scalia-like thinker for the
court as candidate Trump had promised, and the second was to give Kennedy a
comfort level so he could retire and give President Trump a second nominee. It
worked.
When Kennedy
paid an unprecedented visit to the Oval Office two weeks ago, ostensibly to
tell the president of his intention to retire, he also had a secret purpose --
to recommend his replacement. The announcement of Kennedy's departure began a firestorm of
lobbying in behalf of four people from a list of 25 potential nominees that
Trump had published when searching for Scalia's replacement.
The idea of a published list is novel. But it cemented
loyalty from conservatives to Trump, who, of course, had no track record in
evaluating or appointing judicial nominees. The standards used to put names on
the list involved examining academic credentials and published works and, with
the exception of one person, requiring judicial experience with a
traditionalist bent, even if brief.
Social and religious
conservatives pushed the president to nominate Judge Amy Coney Barrett, a
fiercely Catholic mother of seven and former Notre Dame Law School professor
who is a known opponent of abortion. Intellectual conservatives pushed for Judge Raymond Kethledge, a
philosopher like Justice Gorsuch who believes in the primacy of the individual
and who recognizes natural rights. (Your Watchman’s choice) The
president's sister Judge Maryanne Trump Barry had her brother convinced that
her colleague Judge Thomas Hardiman, a blue-collar diamond-in-the-rough
conservative, would fulfill his promise to his base.
But at the last minute, a gaggle of Washington lawyers
and lobbyists -- called the establishment when you agree with them and the
swamp when you don't -- persuaded the president to reject his commitment to his
sister and nominate Judge Brett Kavanaugh. He is the man Justice Kennedy had
asked the president to nominate and is another former Kennedy clerk.
The suspense over all this was
palpable earlier this week. The showman in the president beat a drum so
effectively last weekend that we all watched with excited pulse rates on Monday
night. I was and remain extremely disappointed. Donald Trump -- whatever you
think of him as a president -- has been utterly faithful to his campaign
promises in foreign and domestic policy. Until now.
Now he has
given us a nominee to the highest court in the land who typifies the culture he
railed against when he claimed he'd drain the swamp. This man and this culture
accept cutting holes in the Fourth Amendment because they don't believe that it
should protect privacy. This man and this culture accept unlimited spying on
innocent Americans by the National Security Agency because they don't believe
that the NSA is subject to the Constitution.
This man and
this culture even looked the other way in the face of deep state shenanigans
against President Trump himself. This man and this culture accept the federal
regulation of health care and its command that everyone buy health insurance,
called Obamacare. This man and this culture embrace the Nixonian mantra that if
the president does it, it is not illegal.
What happened here?
The Kavanaugh nomination is not a
question of his qualifications; it is a question of his values. It is dangerous
for judges to embrace values that diminish personal freedom rather than expand
it. When they do that, they reveal their view that freedom comes from the
government, not from within us. Thomas Jefferson and all the Founding Fathers profoundly rejected the
government-as-source-of-freedom argument, but Judge Kavanaugh accepts it.
Jefferson once remarked that unless you pick someone's
pocket or break someone's leg, no one should care how you exercise your freedom
or pursue happiness. I wish the president had nominated a person who believes
that, as well. But he didn't.
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