President Donald J. Trump (R-New York) and his new ally controversial Alabama U.S. Senate candidate Roy Moore are in a position to disrupt America’s courts and law forever. A Moore victory might change federal courts, the U.S. Supreme Court, and constitutional law beyond recognition.
Pat Buchanan explained why the Moore election is a time bomb that can blow the existing status quo in American jurisprudence and constitutional law to shreds in a November 28 American Conservative piece.
“That Alabama Senate race could determine whether Roe v. Wade is overturned,” Buchanan wrote. Roe v. Wade was the blockbuster U.S. Supreme Court decision that gave American women the right to abortion.
How Abortion Explains Christian Support for Moore and Trump
Many Conservative Christians; especially Evangelicals and Catholics, believe abortion is murder which explains why they would vote for Moore and Trump. These people know that Moore and Trump are sinners, but they think the two might be in a position to prevent what they see as a greater sin: abortion.
Electing Moore to the U.S. Senate on December 12, 2017, might make it easier for Senate Republicans to appoint a U.S. Supreme Court Justice. Under the current practice the votes of a majority (51 Senators) are needed to appoint a Supreme. Republicans currently hold 52 Senate seats but there’s a strong chance they will lose at least two in next year’s mid-term elections.
Having Moore in the Senate might make it easier for Trump to appoint a conservative or anti-abortion jurist to the Supreme Court. Moore’s presence in the Senate would also make it harder for Trump to appoint a liberal or moderate Supreme Court Justice in an attempt to appease Democrats.
The current Senate contains 52 Republicans, 46 Democrats, and two “independents” that caucus with Democrats. This does not guarantee Republican appointments because there are a number of moderate and liberal GOP Senators that might oppose a very conservative nominee. The situation is complicated by loose-cannon Republican Senators that have personal grievances against Trump, such as John McCain (R-Arizona).
Christians Need Moore to Pack the Courts
A problem for Christians is that Democrats vote as a block, and one of the “independents” is socialist Bernie Sanders (I-Vermont) who is to the left of most Democrats. That means they can only count on Republican votes in the judicial nomination problems.
Another problem is that U.S. Senator John McCain (R-Arizona) has brain cancer. McCain might become incapacitated; or die or be forced to retire, at any time complicating Senate dynamics. A special election to replace McCain would be problematic because there’s a strong chance Democrats would win it.
This explains why Christian Conservatives are so anxious to elect Moore. They believe this might be their last opportunity to overturn Roe v. Wade, and pack the federal courts with socially-conservative judges.
There are currently 119 open seats in federal district courts and 18 open seats in United States Courts of Appeals for the Federal Circuit, Buchanan pointed out. During last year’s election Trump promised to fill them with conservatives and he has been rushing to make good on that promise. Having Moore in the Senate would make court packing easier.
How Christian Court Packers can Change the Supreme Court Forever
Such court packing has the potential to change the federal courts forever if Democrats get in a position to retaliate for it. That would be easier than you think; because all that is required to appoint federal judges and Supreme Court justices is a simple majority in the U.S. Senate.
The Constitution gives the President the right to nominate as many federal judges and Supreme Court justices as he or she wants. It also gives the Senate the right to approve as many of those nomination as it wants.
If a future Supreme Court were to overturn Roe V. Wade, a future Democratic president would be under intense pressure to appoint enough liberal Supreme Court justices to reverse that ruling. Contrary to popular belief there is no limit on the number of Supreme Court justices in the Constitution, so packing the nation highest court would be legal.
President Franklin D. Roosevelt (D-New York) actually attempted such a court-packing scheme back in 1937. FDR dropped that plan because of intense popular opposition, but a Democratic President and Senate under intense pressure from voters to preserve a “woman’s right to choose” might have no such inhibitions.
That means we might see a Democratic attempt to add two; or more, Supreme Court justices as early as 2021. Such an effort would be followed by a push to appoint large numbers of liberal judges to insure a “progressive majority” in the courts. Christian Conservatives’ attempt at controlling the courts might backfire and result in a court system where they have no influence.
Senate Republicans might try to prevent this by restoring the filibuster; which would require 60 votes for approving a judicial nominee. The effect of that would be limited because a Senate majority can eliminate the filibuster with a simple rule change. Note: under current Senate rules the judicial filibuster is prohibited but it can be revived and killed again at any time.
Why Conservatives should Be Afraid of Christian Court Packing
Christians’ obsession with abortion might lead to disaster for conservatives, in the form of a liberal court system in which they have little or no influence. They might put other conservative goals; such as restraining business regulation and protecting the Second Amendment right to bear arms in jeopardy, in their rush to “protect the unborn.”
A better strategy would be to try to preserve the status quo in the federal courts by depoliticizing the appointment of judges and Supreme Court justices. That would deprive left-wingers of the ability to get total control over the court system.
Judicial appointments can be depoliticized by simply having panels of judges; or law professors, rather than the president nominate candidates for the bench. A more interesting solution would be to create a national agency; or even use software algorithms, for the selection of judicial candidates.
Conservatives should seriously consider depoliticizing the appointment of judicial nominations now. If they do not an unholy alliance of Christians and Donald J. Trump might open the door for total leftwing domination of the Federal Courts. Roy Moore’s election might hasten that development, by giving extremists on both sides of the aisle, the tools they need to pack the courts.
This commentary originally appeared at Market Mad House, please check it out.