It’s a safe bet that Hot Air readers aren’t ready for Eric Holder to take a seat on the Supreme Court. Perhaps surprisingly, Eric Holder agrees, although almost certainly not for the same reasons. His demurral may seem a little surprising, but it’s worth noting in the context of the stakes for the next election:
Eric Holder Jr. has returned home to Covington & Burling after more than six years as U.S. attorney general, and he said it is the “last stop” in his legal career. He even ruled out a U.S. Supreme Court appointment, if he is asked.
That means that if Hillary Clinton were elected president and offered him a seat on the high court, he would have an answer ready.
“I’d say, ‘Madame President, with all due respect, you need to pick somebody who’s a) younger and b) who’s a lot more interested,’ ” Holder said in a candid interview with The National Law Journal at Covington’s new office in downtown Washington.
Holder, 64, explained that after he served as a District of Columbia Superior Court judge for five years earlier in his career, he decided that judges were referees, and “I want to be a player.”
We’ll get back to that point in a moment. It’s not likely that Holder would make the short list for Hillary Clinton anyway, for two good reasons. First, Holder is too connected with Barack Obama and the scandals of Operation Fast and Furious and the surveillance of reporters. Even if she managed to overcome Obama fatigue to win election, she’d have her eye on the next election and the avoidance of George H. W. Bush’s fate in a re-election bid. Tying herself to the man who earned a contempt citation from Congress isn’t the way to become her own person, and a Republican-controlled Senate would make it a miserable prospect. Secondly, he’d be 66 years old by the time Hillary got to choose an appointee, and presidents are now looking for younger candidates for longer periods of influence.
However, even the very idea highlights how important it is for Republicans to get this next election right. The power to appoint federal judges is always a big consideration, but it’s even more important than ever in this election. It’s almost certain that two and possibly three Supreme Court seats will be up for grabs in the next few years, which makes this a momentous election just on that basis alone. However, thanks to Obergefell, it’s become even more critical. That decision abandoned precedent and federal jurisdiction for the “reasoned judgment” of nine unelected and unaccountable jurists to carve out a new positive right as a federal mandate on states. Chief Justice John Roberts excoriated the majority on this arrogation of legislative power:
To be fair, the majority does not suggest that its individual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. Ante, at 10, 11. The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner. See 198 U. S., at 61 (“We do not believe in the soundness of the views which uphold this law,” which “is an illegal interference with the rights of individuals . . . to make contracts regarding labor upon such terms as they may think best”).
Justice Antonin Scalia was even more scathing in his dissent about Kennedy’s use of “reasoned judgment” over the rule of law and the separation of legislative and judicial functions:
We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.
But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.13 That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ”14 One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”15 The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.17
Essentially, Kennedy’s decision carves out a precedent where rights materialize simply from the “reasoned judgment” of five jurists with no connection to precedent or to legislation. It’s a radical departure from the rule of law and even the Supreme Court’s prior rulings on rights. In cases such as Griswold and even Lawrence, the Supreme Court ended government interventions to recognize rights of privacy and private conduct. In Obergefell, the court imposed a mandate on states to conduct public approvals of same-sex marriages while ignoring precedent in favor of their own “reasoned judgment” — a far different mechanism, and one that could conceivably be used to create all sorts of “rights,” depending on the whims of five Supreme Court justices.
So … who are the “players,” in this scenario, and who is the referee? Holder may already be rethinking this statement, and well he might.
In that brave new undemocratic world, the appointment of Supreme Court justices may be the most important issue in any presidential election. Hillary Clinton might not nominate Eric Holder, but the real danger is giving her the opportunity to make those appointments in the first place.
Note: I am working on research this week, so my blogging will be sparse. We’ve got great guest bloggers to read in my place.