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Commentary: Trump is the greatest president in the modern era when it comes to shaping the judiciary

Commentary: Trump is the greatest president in the modern era when it comes to shaping the judiciary

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Marc A. Thiessen

Marc A. Thiessen

With the Senate’s confirmation of Amy Coney Barrett to the Supreme Court, President Donald Trump has cemented his legacy as the most important president in the modern era when it comes to shaping the judiciary. Whatever happens on Election Day, that legacy will remain — and it validates the votes of every conservative who, despite other misgivings, decided to support him.

The last president to appoint three justices in his first term was Richard Nixon, but his picks included Justice Harry Blackmun, the author of Roe v. Wade who became one of the most liberal justices on the court. Trump’s picks, by contrast, have been outstanding. With his appointment of Neil Gorsuch to replace Antonin Scalia, Trump saved the court’s conservative majority. With his appointment of Brett Kavanaugh to replace Anthony Kennedy — a swing vote — he inched the court to the right. And now by appointing Barrett to replace Ruth Bader Ginsburg, the court’s liberal icon, Trump has secured a decisive 6-to-3 conservative majority. This will affect the court’s jurisprudence for a generation, with far-reaching consequences for life, religious liberty, free speech, Second Amendment rights, the separation of powers and limited government. Imagine how different the court would look today if Hillary Clinton had won the 2016 election. She probably would have nominated a judicial activist to replace Scalia, creating a 5-to-4 liberal majority. She would have replaced Ginsburg with another liberal, securing that seat for decades. She might have had a third pick if Justice Stephen Breyer made the same decision as Kennedy and retired when a president he trusted was in office. The damage done by the activist liberal court Clinton ushered in would have been breathtaking.

Simply stopping this is an accomplishment. But Trump has made better judicial choices than any modern Republican president. Of Ronald Reagan’s three appointees (Sandra Day O’Connor, Scalia and Kennedy), only Scalia was a consistent conservative. George H.W. Bush appointed one solid conservative (Clarence Thomas) and one solid liberal (David Souter). George W. Bush picked one reliable conservative (Samuel Alito Jr.) and one wavering justice (John Roberts Jr.). By contrast, the four liberal justices appointed over the past quarter century — Ginsburg, Breyer, Elena Kagan and Sonia Sotomayor — almost never defect on close 5-to-4 cases. So, Democrats have a perfect record on recent Supreme Court appointments, while Republicans were not even batting .500 — until Trump came along.

Perhaps Trump’s greatest accomplishment will be neutralizing the influence of Roberts. After promising to be an impartial umpire, Roberts has taken the field and legislated from the bench in a string of cases — voting with the court’s liberals to rewrite Obamacare, preserve the Deferred Action on Childhood Arrivals program, block a citizenship question on the census, strike down state laws that required admitting privileges for doctors who perform abortions and allow the Pennsylvania Supreme Court to rewrite the state’s election laws. And those are just his defections on cases the court took up. According to CNN, “Roberts also sent enough signals during internal deliberations on firearms restrictions, sources said, to convince fellow conservatives he would not provide a critical fifth vote anytime soon to overturn gun control regulations. As a result, the justices in June denied several petitions regarding Second Amendment rights.”

Thanks to Trump, Roberts is no longer the swing vote. If Barrett agrees with the legal reasoning of her conservative colleagues, they have the five votes they need without him.

Trump’s appointment of Barrett also complicates Democrats’ plans to reverse this progress via court-packing if they win back the White House and the Senate next week. Before her appointment, Democrats would have had to expand the court by two justices to flip the 5-to-4 conservative majority into a 6-to-5 liberal majority. But now with Barrett on the court, they would have to add four justices in order to achieve a 7-to-6 liberal majority. Given that Americans support Barrett’s confirmation 51% to 28%, oppose court-packing 58% to 31% and approve of the high court’s performance 53% to 47%, for Democrats to add any new seats — much less the four needed to flip the court — would be widely seen as a raw power grab.

That doesn’t mean they won’t try. Voters have a chance to stop them by preserving a Republican majority in the Senate. If history is our guide, Trump may have more Supreme Court appointments in a second term — and with them the opportunity to further preserve or even expand the court’s conservative majority. As for the 26% of Trump voters who backed him because of the Supreme Court, their decision has produced a court that will protect our freedoms for decades to come. Any other flaws in the Trump presidency pale by comparison.

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