The Rushmore Report – The Five Senators Who Will Decide Fate of Supreme Court Nominee

Last night, President Trump announced his new Supreme Court nominee on national television. In case you missed it, Trump just named Brett Kavanaugh to fill the vacancy created by the retirement of Judge Anthony Kennedy. Now the real work begins. The United States Senate will now decide Judge Kavanaugh’s fate. But we already know where 95 senators stand. We know that of the 49 Democrats, 46 already decided to oppose the Trump nominee, no matter who it was. And on the other side – with John McCain unable to be present – 48 of the 50 Republicans were solid votes for the nominee, no matter what.

That leaves five senators who are somewhat persuadable. The future of the Supreme Court, controversial cultural issues, and perhaps legalized abortion – is in the hands of Judge Kavanaugh, and therefore in the hands of these five senators.

Three Red-State Democrats

There are several Democratic senators up for re-election in just a few months, who come from states carried by Donald Trump in 2016. These include Joe Tester (Montana) and Claire McCaskell (Missouri). But there are three others, who are most vulnerable to defeat if they don’t support the Trump nominee.

These three are: Joe Donnelly (Indiana), Heidi Heitkamp (North Dakota), and Joe Manchin (West Virginia).

Each of these has a complex relationship with President Trump. They try to find a balance between never supporting Trump (which would alienate their voters) and always supporting Trump (which would alienate their party). While they voted for Judge Gorsuch last year, their votes didn’t really matter, as he had the full support of the Republican Caucus. But this time, their votes will matter.

Two Moderate Republicans

Susan Collins (Maine) and Lisa Murkowski (Alaska) both voted against Trump in his battle to kill the Affordable Care Act. Both are pro-choice Republicans. Collins is most at risk to the president, as she represents a moderate/liberal state, unlike Alaska, which is about as conservative as it gets.

It is certain that both Collins and Murkowski will question the new nominee hard on the subject of abortion. And it is equally certain that Judge Kavanaugh won’t take the bait. Then the two Republicans will have to decide which way to go – knowing they likely hold the future of the Supreme Court of the United States firmly in their hands.


We are betting that Judge Kavanaugh will win confirmation. Why? Because there isn’t enough time for President Trump to get another nominee approved before the midterm elections. Therefore, it is likely that Trump did not nominate someone who he wasn’t sure he could get through Congress.

But this will be interesting. Forget about the Senate – and watch the senators. For the next generation, the future of the Supreme Court of the United States will rest in the hands of five people – Joe Donnelly, Heidi Heitkamp, Joe Manchin, Susan Collins, and Lisa Murkowski.

The funny thing is that these five senators represent five of the smallest states in the country, with a combined population of about 11.2 million, or three percent of the total population of the United States. But that is what we have come down to. The future of the Supreme Court now rests in the hands of five people, who represent just three percent of America.


The Rushmore Report – President Trump’s Pick for the Supreme Court

After meeting with several candidates on Saturday, President Donald Trump promised that Americans will have a new nominee for the Supreme Court by July 9. The president spent this past weekend at his golf club in New Jersey, brushing up on judicial philosophy and sitting down for one-on-one meetings with at least five possible nominees. Two of the prospective jurors are women, Trump told reporters. He has reportedly narrowed his search to a handful of federal judges: Brett Kavanaugh, Amul Thapar, Thomas Hardiman, Raymond Kethledge, and Amy Coney Barrett.

The pick here is Amy Coney Barrett, who is popular among conservatives, who cite her recent Senate confirmation hearings for the federal bench, where she was accused by Senator Dianne Feinstein (D-CA) of fully espousing Catholic dogma.

The reason I predict Barrett will be the President’s selection is that she was just confirmed by the same Senate that will oversee this process. It will be the height of hypocrisy for senators – who just confirmed her months ago – to turn on her now.

Trump would only say that he believes Barrett is an “outstanding woman,” when speaking with reporters on Air Force One this past weekend, careful to not reveal too much inside information about his selection process.

The July 9 deadline is ambitious; nominees for the Supreme Court must pass an FBI background check before they can even be considered for a spot on the nation’s highest court, and Business Insider reports that agents are still in the midst of vetting several possible candidates. But Trump wants to start the confirmation process as quickly as possible so Republicans can cast their votes ahead of the November elections.

Democrats are eagerly anticipating a partisan fight, but it could be over before it starts. Senator Chuck Schumer’s (D-NY) filibuster of Justice Neil Gorsuch’s nomination triggered Republicans to use the so-called “nuclear option,” removing the “super majority” requirement of 60 votes to place a new justice on the nation’s highest court.

Now, the GOP needs just 51 votes to pass the nominee, and in the event of a tie vote, Vice President Mike Pence would cast the deciding vote.

So this nomination process will likely fall to the moderate members of the Republican Party – Lisa Murkowski (AK) and Susan Collins (ME), both of whom are supporters of Roe v. Wade.

When interviewed over the weekend, President Trump said that he has no plans to ask any prospective justices how they would rule should abortion rights come before the Court again. It probably wouldn’t matter if he – or the Senate – did ask such questions, as nominees have learned to not weigh in on specific issues and cases while testifying before the Senate.

So the president is about to make his second Supreme Court nominee in just a few days. And we think that person will be Amy Coney Barrett.

The Rushmore Report: Why the Gorsuch Filibuster Is Such a Bad Idea

Democratic Senate Leader Chuck Shumer (NY) has managed to enlist enough senators to mount a filibuster against the Neil Gorsuch nomination to the Supreme Court. This move belongs high on the list of all-time political blunders. In their effort to shoot down the Gorsuch nomination, Democrats have formed the perfect circular firing squad. This is an unforced error of historical proportions. Let’s review.

Here’s how we got here.

1. Harry Reid (D-NV) changed Senate rules.

In 2013, when Democrats controlled the Senate, Leader Harry Reid blew up the time-honored filibuster rules on lower court appointments. From 1948 until 2013, it took 60 senators to cut off debate and force a vote on court appointments. Reid changed all that, in order to get Obama-appointed judges through on a partisan vote. Democrats liked the new rule – at the time – because they controlled the Senate.

2. Republicans denied Obama’s nominee a hearing.

In March of 2016, President Obama nominated Merrick Garland to replace Antonin Scalia on the Supreme Court. Republicans refused to hold hearings for two reasons. Their stated reason was that no Supreme Court nominee had ever been considered during an election year. Republicans said the next president should make this appointment. The other reason for their opposition – unstated and often denied – was purely political. They wanted the get a conservative as Scalia’s replacement. And while Democrats have attacked this decision, it is clear that they would have done the same thing if circumstances were reversed. Joe Biden even said so.

3. Trump nominated a really good candidate.

Democrats have been unable to offer any real reason to oppose the Gorsuch nomination. His credentials are beyond reproach.

4. Democrats have decided to filibuster the nomination.

For the first time in American history, a Supreme Court nomination will be filibustered for purely partisan reasons. For Democrats, this is payback for the treatment Republicans gave Judge Garland.

5. Senate Majority Leader Mitch McConnell (R-KY) will invoke the “nuclear option.”

Senator Schumer said – amazingly – that he will oppose “any nominee President Trump brings before the Senate.” By “oppose,” he means filibuster. That leaves McConnell two options: either change the filibuster rule or agree that for the next four to eight years we will not add anyone to the Supreme Court under any circumstance. Schumer’s game of chicken has given Republicans no choice. The only way they can get a nominee confirmed is by changing Senate rules to allow for a simple majority vote.

Here’s why this is such a dumb move by Democrats.

Judge Gorsuch is, by all accounts, a mainstream judge. He has voted with the majority on 97 percent of his lower court rulings. He has never ruled on abortion or other issues that would tag him far right. In short, he is the most acceptable nominee Democrats will ever get from Mr. Trump.

By forcing McConnell to make the rule change, when one of the octogenarian liberal justices (Ginsburg, Breyer) retires, Trump will nominate a replacement who is acceptable only to Republicans. By no longer needing Democratic votes, the next nominee will likely be more conservative.

On the other hand, had the Democrats not threatened to filibuster, Republicans would have not changed the rules. Had that happened, Republicans would have looked really bad changing the rules for a future nominee.

Said simply, Democrats picked the wrong fight. They played all their cards, knowing they would lose anyway. Now they are out of moves.

I’m an old chess player. What Senator Schumer is doing this week is akin to a chess player moving his queen to a position to be captured, when it accomplished nothing in return. Can a chess player still win without his queen? Yes, but it suddenly gets a whole lot harder.

So why did Schumer and the Democrats do this? It’s simple. They are placating their base. And that makes sense for the most nearsighted of politicians. But give Trump one or two more far-right nominations, and the Democrats will look back and ask, “What were we thinking?”

The Rushmore Report: Democrats Delay (Get Used to This) Gorsuch Nomination

On Monday, Senate Democrats forced a delay of the nomination to the Supreme Court of Judge Neil Gorsuch. Sen. Chuck Grassley, R-Iowa, chairman of the Judiciary Committee, announced that, as expected, Democrats have requested a postponement, as allowed under the archaic rules of the Senate. Thus, in effect, the Democrats have decided the best way to serve the American people for the next seven days is to do nothing.

Though committee hearings have ended, and there is no more inquiry or work to do except vote, the Democrats have stalled the inevitable nomination of Judge Gorsuch. The only question that remains is whether they can muster enough support to mount a filibuster of the nomination – something never done against a Supreme Court nominee.

When President Obama nominated two liberal justices to the court, Republicans did not filibuster. Nor did Republicans ever – in American history – change the filibuster rule for lower court appointments.

But under Sen. Harry Reid, D-Nev., the Democrats blew up 200 years of precedent, meaning all judges other than on the Supreme Court, need only 51 votes to be confirmed, as opposed to 60. Since it is clear that the Democrats will not vote for any candidate Trump might nominate, the Republicans have no choice but to do to the Supreme Court what Democrats, under Reid, already did to the other courts. They will employ the “nuclear option,” meaning a rule change that will allow for Supreme Court justices to win nomination by a simple majority vote of the Senate.

But none of this will happen this week. Why? Because the Democrats have taken the position that the best way they can serve the American people is to put their work on hold and do nothing. After all, they need the break. With a week off over Easter (Who doesn’t get a week off for Easter?) and an entire month off this summer, what’s one more week of doing nothing going to hurt?

The worst part of it is that when Chuck Schumer and his Democratic colleagues made this decision to do nothing for a week, most of the media didn’t care. And most of America will not notice.

The Rushmore Report: The Faith of Judge Neil Gorsuch

President Donald Trump has nominated Judge Neil Gorsuch as the newest member of the United States Supreme Court. There are five things to know about his faith.

1. Gorsuch was raised Catholic, and is now Episcopalian.

He studied at the Jesuit-run Georgetown Preparatory School in Bethesda, Maryland, while his mother, Anne Gorsuch, served as President Reagan’s administrator of the Environmental Protection Agency. After college and law school, he clerked for Justice Anthony Kennedy, who is Catholic. Gorsuch, his wife, and two daughters now attend St. John’s Episcopal Church in Boulder, Colorado.

2. The judge has supported religious groups against the U.S. government.

Two major religious liberty cases wound up before Denver’s 10th Circuit Court of Appeals, where Gorsuch has served since 2006: The Little Sisters of the Poor v. Burwell, and Hobby Lobby v. Burwell. In both cases, religious organizations – a Catholic order of nuns and the evangelical owners of a craft store chain – sought exemptions from providing birth control under the Affordable Care Act, or Obamacare. “All of us face the problem of complicity,” he wrote in support of Hobby Lobby. Government should not force those with “sincerely held religious beliefs” to comply with “conduct their religion teaches them to be gravely wrong.” The Supreme Court upheld his ruling in a 5-4 decision in 2014.

3. Gorsuch opposes euthanasia and assisted suicide.

Revealing views that are consistent with those of most Christian denominations, Judge Gorsuch wrote a book titled The Future of Assisted Suicide and Euthanasia, in which he argued for maintaining laws against assisted suicide and euthanasia.

4. Gorsuch has not ruled in an abortion-related case.

Though he has not ruled in such a case yet, he is lauded by many conservative religious people and groups who seek the overturning of Roe v. Wade because of how he wrote about the value of life in his book. He wrote, “All human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” He continued, “The law doesn’t just apply to protect popular religious beliefs; it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

5. Judge Gorsuch reminds many of Antonin Scalia, a committed Catholic.

University of Denver law professor Justin Marceau told The Denver Post that Gorsuch would be Scalia’s “intellectual equal and almost certainly his equal on conservative jurisprudential approaches to criminal justice and social justice issues that are bound to keep coming up in the country.”

About the Author

Kimberly Winston writes for the Religion News Service. Based in San Francisco. She does freelance work on atheism and evidence for Christ as the Messiah. Winston is a committed follower of Christ and student of the Scriptures.

The Rushmore Report: Supreme Court Nominee Neil Gorsuch – 10 Things You Should Know

President Trump has nominated 10th Circuit Judge Neil Gorsuch to fill the Supreme Court seat of the late Antonin Scalia. The debate within the Senate will be fierce. House Minority Leader Nancy Pelosi has already responded: “If you breathe air, drink water, eat food, take medicine, or in any other way interact with the courts, this is a very bad decision.” Aside from that encouraging insight, what do we know about Judge Gorsuch? I contend there are ten things you need to know.

1. His academic credentials are unimpeachable.

Gorsuch completed his undergraduate studies at Columbia University, got his J.D. from Harvard Law School, and earned his doctorate from Oxford.

2. Gorsuch is a popular choice.

The popular website FantasySCOTUS consistently ranked him first among  the 22 potential Trump nominees in voting by readers.

3. He has a famous mom.

Anne Gorsuch Burford was President Ronald Reagan’s first administrator of the Environmental Protection Agency. She was eventually forced to resign over charges of political favoritism.

4. Gorsuch detests judicial activism.

In his writings in lower court decisions, the judge has said, “The politicization of the judiciary undermines the only real asset it has – its independence.” When introduced by Trump Tuesday night, he said, “Any judge who likes all of his own decisions is probably not a very good judge.”

5. He is a textualist.

After Scalia’s death, the judge wrote, “Judges should strive to apply the law as it is, focusing backward, not forward, and looking to the text to decide a case.” In other words, he will make decisions based on the text of the Constitution as it is written.

6. The judge warns of federal overreach.

In August, 2016, Gorsuch wrote a concurring opinion for a case in which he scorched the “Chevron doctrine.” According to The Washington Post, “Chevron” is “the doctrine that provides that courts must defer to permissible agency interpretations of ambiguous statutory language.”

7. Gorsuch has already been confirmed by the Senate – unanimously.

It will be awkward for the Democrats to oppose the same man they just confirmed a few years ago. The Denver Post writes that when Neil Gorsuch was appointed to the 10th Circuit Court of Appeals in 2006, his “nomination was approved on a voice vote” in the Senate. No official tally was taken because Gorsuch’s nomination “wasn’t considered controversial.”

8. Gorsuch is a huge proponent of religious freedom.

Two major religious liberty cases wound up on Gorsuch’s desk. In both cases, he sided with groups seeking to maintain their religious liberties.

9. The judge has not ruled on abortion-related cases.

Despite this fact, he is lauded by most conservative religious groups who seek the overturning of Roe v. Wade because of how he wrote about the value of life in his book.

10. He will be confirmed – but it won’t be easy.

Clearly, the judge does not fall into the “mainstream,” as defined by Senate Minority Leader Chuck Schumer, D-NY. No one on Trump’s list could gain Democratic support. So two things will likely happen. First, the Democrats will filibuster, meaning Republicans will need nine Senate Democratic votes to confirm the nomination. Second, failing to gain that number, Republicans will invoke the “nuclear option,” changing their own rules, meaning it will only take 51 votes to end the filibuster, rather than 60. This will be consistent with what Senator Harry Reid, D-NV, did a few years ago. And then Judge Gorsuch will be the newest member of the United States Supreme Court.

To quote former President Barack Obama, shortly after his election of 2008, “Elections have consequences.” One of those consequences is that President Trump will get his man on the Court. But the fun has just begun.

The Rushmore Report: New York Times Says Trump ‘Stole’ Supreme Court Seat

With the shocking election loss of Hillary Clinton has come what Ben Shapiro calls “a full-scale meltdown of the American left.” Leading the pack is The New York Times. After railing against Trump and the Electoral College for seven weeks, they have turned their ire to the Supreme Court. First, they demanded a recount in Wisconsin. When that recount gave Donald Trump an additional 121 votes, they never reported the outcome. So now it’s on to the Supreme Court.

Here’s the thinking behind the Supreme Court accusation. Because the Republican Senate would not approve President Obama’s Supreme Court nomination to replace the late Justice Antonin Scalia, the paper reports, “No matter how it plays out, the person who gets confirmed will sit in a stolen seat. It was stolen from Barack Obama, a twice-elected president  who fulfilled his constitutional duty more than nine months ago by nominating Merrick Garland, a highly qualified and widely respected judge.”

Because the Senate Republicans refused to vote on the president’s nomination, the Times suggests, anyone nominated by Trump will sit in a “stolen” seat.

I was one conservative who actually agreed that the Republican Senate should have voted on Obama’s nominee. I found their argument that the president was soon to leave office to be shallow. Having said that, what they did was consistent with the exact process supported by Democratic Vice-president Joe Biden when he was a senator in 1992.

As chair of the Judiciary Committee, he said that a Supreme Court vacancy “that would occur in the full throes of an election year” should require the president to avoid naming someone to fill the seat. The idea, said Biden, “is that once the political season is underway, action on a Supreme Court nomination should be put off until after the election campaign is over.”

Of course, Biden took that stance when a Republican was in the White House.

Still, The New York Times called the Republican logic, identical to Biden’s, “a patent lie.” They forget, of course, that it is well within the purview of the Senate to refuse a vote on anything it chooses. As Democratic leader of the Senate, Harry Reid made inaction a new art form.

Now, the Times is calling on Trump to re-nominate Garland himself, to honor Obama’s choice. Does anyone who lives in the real world think they would have called on a Democratic president to nominate a former Republican president’s choice – under any circumstances? And where were they when Mr. Biden took the very same path in 1992?

Whether the Republicans should have given Mr. Garland an up-or-down vote is still an open question. But Mr. Trump was not in office then. He had zero authority to nominate, recommend, or vote on a Supreme Court nomination. Now, as the incoming president, it seems the left considers any nomination of the new president to be “stolen,” simply because he won’t recommend a “centrist” (code for pro-abortion liberal).

Let’s keep it simple. Mr. Trump will have two choices. One – he can recommend a Supreme Court justice to fill the vacated seat, in fulfillment of his constitutional duties (just as Obama did). But in so doing he will be “stealing” a seat. Two – he can violate his constitutional duties for four years in an effort to placate The New York Times.

It’s a choice between the real world and the fantasy world of the left. Only in The New York Times is it newsworthy that a United States president would nominate a Justice to fill a vacated slot on the Court – and be hammered for doing so – before the nominee’s name is even known.

This would be more troubling if anyone still actually read The New York Times.

The Rushmore Report: The One Area Where Trump Will Make the Biggest Difference

The Electoral College will make it official next week – Donald J. Trump will be our next President. And many conservative leaders are trumpeting the ways they think he will make the most impact. But most of them are wrong. The one way Mr. Trump will have his greatest influence on the direction and future of America has nothing to do with bills or legislation. It’s all about one thing – and it will alter the course of the country for 30-plus years.

It’s all about the courts, and the Supreme Court, especially. Over the next four years, most observers think Trump will replace three or even four justices. This will determine the direction of the United States for a generation.

But there’s more. Republicans not only succeeded in getting their candidate to the White House, they also succeeded in securing a majority in Congress, which will have a great impact on the type of justices appointed not only to the Supreme Court, but to many of the lower courts.

The Hill reports that it is these lower courts where Trump’s election will actually have a more immediate impact.

Only a few years ago, Republicans were worried over President Obama’s leadership, combined with a Democratic majority in Congress. Now, the situation is quite the opposite – and very much in Republicans’ favor.

Not only is a Republican candidate in the White House, but he will likely need only 51 votes in the Senate to confirm the nominees he chooses for the courts. Additionally, he may have as many as 117 judicial vacancies to fill.

Ironically, when they had control of Congress under Obama’s administration, Democrats actually paved the way for the ease of judicial appointment from which Republicans now benefit.

In 2013, the Democrats, led by Senate Majority Leader Harry Reid, abolished legislation permitting filibusters for most federally-appointed judicial nominees. Additionally, instead of needing 60 votes to confirm a nominee, a simple majority vote is now all that is required.

“What goes around comes around,” Senate Majority Whip John Cornyn (R-Texas) told The Hill.

“When you’re short-sighted and you think your majority is going to continue forever then you’re bound to be surprised when voters put you in the minority, so it counsels prudence and a longer view rather than short-term gratification,” Cornyn said.

Many conservatives supported Trump primarily for this reason – the belief that he will appoint conservative judges to the nation’s courts. And this will likely be his greatest, most lasting impact on the nation he is about to lead.

About the Author

Veronica Neffinger is editor for

The Rushmore Report: Four Arguments for Republicans to Block Obama’s Supreme Court Pick

It was only a few hours after news surfaced of Supreme Court Justice Antonin Scalia’s death that Republicans in the Senate had vowed to reject any replacement nominated by President Barack Obama. “The American people should have a voice in the selection of their next Supreme Court Justice,” said Senate Majority Leader Mitch McConnell in a statement. “Therefore, this vacancy should not be filled until we have a new President.”

McConnell’s hard-line position on the Supreme Court vacancy was quickly endorsed by a wide array of Republican officials, including essentially all of the GOP presidential candidates and even senators who face tough reelection prospects in purple states.

The Senate has the duty to “advise and consent” the president on Supreme Court nominations. Sen. Ted Cruz articulated the Republicans’ position by saying it will be “advising” Obama not to nominate anyone. Democrats have called this blanket refusal a reckless abandonment of the Senate’s constitutional responsibility. Sen. Elizabeth Warren went as far as saying the position risked threatening “our democracy itself.”

But while some liberals have cast the GOP’s stance as pure political intransigence, conservatives have articulated a wide range of explanations for not considering any Supreme Court nominee chosen by Obama. Here are four of the key reasons conservatives say the Republican Senate should block any Obama nominee.

1. A Democratic Senate would do the same thing to a Republican president.

Conservatives have argued that a Democratic Senate would not agree to confirm a Republican president’s Supreme Court nominee in an election year, and thus they consider the left’s attacks hypocritical.

“Does any sentient human being believe that if the Democrats had the Senate majority in the final year of a conservative president’s second term – and Justice Ginsburg’s seat came open – they would approve any nominee from that president?” writes David French in National Review. “Democrats would undoubtedly stand firm against a conservative president.”

There are two examples in particular that many conservatives have pointed to for what they see as evidence of how Democrats would act if given the opportunity to block a Republican president’s nominee. One is the Democratic Senate’s successful effort in 1987 to derail President Ronald Reagan’s appointment of Judge Robert Bork, a conservative jurist with controversial pro-life positions.

Another example cited by conservatives comes from 2007, when prominent Democratic Sen. Chuck Schumer said the Senate should reject any further nominees from President George Bush “except in extraordinary circumstances.” Much like Republicans today, Schumer’s sentiment was clearly based on a fear that another Bush appointment would radically shift the overall makeup of the Court’s ideology,” the Daily Caller’s Blake Neff writes.

2. Obama’s nominee could give liberals big victories on critical policy issues.

Another key reason conservatives want the Senate to quash any Obama nominee has less to do with procedure and more to do with the policy implications for the country. The Supreme Court will take up critical cases on abortion, birth control, voting rights, and a host of other issues in this term alone. Allowing the Democrats to have their choice nominee would almost guarantee the left clean victories on what many regard as among the most important fights in American politics. One can disagree with conservatives’ positions on these issues. But there’s no disputing that when it comes to the balance of the Court, the stakes are incredibly high.

3. Conservatives think Democrats and President Obama have themselves violated constitutional norms.

In 2013, the Senate, led by Sen. Harry Reid, used the “nuclear” option to weaken the filibuster, showing a willingness to change the rules and norms of Congress to accomplish a preferred goal. “Democrats pioneered the art, first, of blocking judicial appointees, and, second, of ramming judicial appointees down the minority’s throat at the expense of the filibuster,” writes Mario Loyola in a National Review post.

In September of 2015, 42 Senate Democrats voted to filibuster the approval process for the Iran nuclear deal. Even though all of them had voted for the bill that created that upside down treaty ratification process . . . they denied the Senate that privilege. They cared nothing for the Constitutional niceties then.

4. The point of divided government is for the branches to fight for power.

In her Facebook post criticizing the Republicans’ position, Warren argued that President Obama was democratically elected and thus should have the ability to nominate a Supreme Court justice. But many conservative writers have pointed out that the Senate is also made up of democratically elected officials and that the divided branches of government were intended to fight among themselves.

John Yoo, a Berkeley law professor and President George W. Bush’s controversial deputy assistant attorney general, wrote in National Review, “The Constitution gives the Senate the authority to offer its ‘advice and consent’ on Supreme Court justice nominees. According to the conservatives opposed to Obama, it’s up to the Senate to determine exactly what that means.

“The Senate can structure its own rules to govern the advice-and-consent process,” says Adam J. White in the Weekly Standard. “Nowhere does the Constitution say that the Senate is required to act on the president’s nominations.”

About the Author

Jeff Stein is a columnist and writer for Newsweek. He has served as a columnist for Congressional Quarterly’s website, CQ Politics. He specializes in U.S. intelligence, military and foreign policy issues. Stein has authored three books and made numerous television and radio appearances.

A Tribute to Antonin Scalia

Author Chad Hymas writes, “Success is knowing that those who know you best love you most.” By that definition, Supreme Court Justice Antonin Scalia was the epitome of success. Appointed by President Ronald Reagan in 1986, Scalia was recognized as the most academic voice among the conservatives during his nearly 30-year run. Rightly so, Scalia has received widespread accolades from his peers and political leaders from both parties. But we will offer the perspective of a woman whose name you have probably never heard – Rachel Barkow.

Rachel Barkow was Scalia’s clerk. These are her words, honoring her boss on his 20th anniversary on the High Court.

Although it is somewhat ironic that this tribute to Justice Scalia will be contained in pages of legislative history that he so often derides, I think even he will be convinced that, in this instance, the legislative history is authoritative. After all, if, as he has noted, the use of legislative history is “the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends,” he will see many friends and admirers today. I proudly include myself in that group. Justice Scalia has been a valued mentor and serving as his law clerk was an honor I will always treasure.

All of the Justices play a significant role during their time on the Supreme Court by virtue of their votes in the important cases of the day. But most Justices fail to leave a lasting imprint on the law that goes beyond those votes. Justice Scalia’s jurisprudence, in contrast, will long outlast his time on the bench. For he has spent his twenty years on the Court not merely voting in important cases; he has been articulating his vision of the Court’s place in the constitutional order. Anyone interested in the Supreme Court – from legal scholars to litigants, politicians to pundits – must reckon with his impassioned and intelligent defenses of originalism and textualism. These methodologies have never had a more brilliant advocate on the bench, and generations of law students will wrestle with the arguments he has developed in his opinions. Whether you agree or disagree with Justice Scalia’s jurisprudence, there is no denying the brilliance or coherence of his vision of the Supreme Court.

It is important to note that this clarity has not come without costs to the Justice. It takes courage for a judge to stake out a clear position on what methodology he or she will follow in constitutional and statutory cases. For this transparency allows outside obsevers to assess the judge’s performance by a clear metric. It is so much easier for a judge to take each case as it comes without declaring an overarching method or approach. This flexibility allows the judge to change positions from case to case and vote his or her preferences without much constraint. Justice Scalia has not allowed himself that indulgence. Even if we cannot predict his vote in a given case, we know how to judge his performance, for he has told us in no uncertain terms the values he seeks to uphold and the approach he is committed to follow.

I will let history assess how each of the Justice’s votes has measured up to the standards he has set for himself. But two things are clear. First, there are countless examples that prove the Justice’s fealty to his methodological commitments. The Justice has not shied away from the consequences of his chosen methodologies, even when it has meant overturning an anti-flag burning law in Texas v. Johnson, 49 U.S. 397 (1989), or rejecting the government’s attempt to deprive an American citizen accused of terrorism of his procedural rights in Hamdi v. Rumsfeld. There are numerous other illustrations of his commitment, including a multitude of criminal law cases where the Justice has protected the rights of defendants. These cases demonstrate that the Justice is not merely a great intellect; he has the courage of his convictions.

Second, and more importantly, regardless of how Justice Scalia himself has performed under the standards he has set for himself, we must thank the Justice for articulating those standards brilliantly, cogently, and colorfully. His opinions are not only educational, they are engaging. They make us think about the role of the Court in our democracy, the nature of rights, and the balance of power in government. His opinions are also beautifully written; he is a master artisan of the craft of judicial opinion writing. Whether his opinions prompt howls of delight or screams of disgust, they are full of life, just like the Justice himself.

I hope we can look forward to at least twenty more years of Justice Scalia’s service. But even if he served not a day more, his place in history is both assured and well-deserved.