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Cherry picking our Supreme Court justices

Jun 20, 2016

On Friday, I was sharply critical of Lieutenant Governor Brian Calley for a statement he made last week in an interview.

The lieutenant governor, who is supporting Donald Trump, indicated he was doing so mostly because he was concerned about the next several appointments to the United States Supreme Court.

He added, “The next president will decide whether our Bill of Rights remains as it has been understood to be all this time.”

I took him to task for that, because the President does not, of course, have the power to say what the Bill of Rights means; only the federal courts, and ultimately the United States Supreme Court, does.

To my surprise, the lieutenant governor called me later that evening, as he was driving across the Upper Peninsula. He was extremely courteous and wanted to explain his reasoning – and later continued the conversation in a series of text messages.

Calley said he thought it was clear from the context of the story published by the Gongwer News Service that when he said the next president would decide the meaning of the Bill of Rights, he was referring to U.S. Supreme Court vacancies.

The current one, for the seat held by the late Justice Antonin Scalia, and presumed future vacancies in the next administration.

He said he was primarily concerned about First and Second Amendment issues.

The Second Amendment is, of course, about the right to keep and bear arms. When it comes to the First Amendment, Calley seems to be primarily concerned with freedom of religion issues, and to be afraid the court might do something to inhibit that.

Last month, Mr. Trump did release a list of judges he might use as a guide to making Supreme Court appointments.

The lieutenant governor told me,

“I believe given the list he put out, we have a much, much better chance at maintaining the status quo than an appointment from Hillary Clinton.”

Lieutenant Governor Calley is certainly entitled to think that, though one of Justice Scalia’s clerks told the New York Times that whether Mr. Trump “could actually be counted on to pick folks like this is a different question.”

What bothers me most, however, is the notion that a President should cherry-pick justices based on their guess as to how they are likely to come down on one or two issues the politician cares about.

Supreme Court justices are supposed to be constitutional scholars.

Mr. Calley said of himself, “you don’t make it through the MPA program at the Kennedy School of Government without a fairly strong grasp of these things.” But in fact, neither he nor Donald Trump is even an attorney, much less a constitutional scholar.

Thirty years ago, when President Reagan nominated Antonin Scalia to the Supreme Court, he was confirmed unanimously. He was well known to be deeply conservative. But, as is the case with nominee Merrick Garland today, his intellectual credentials were impeccable.

Back then, nominees tended to be rejected only in the case of financial or moral issues. We rightly expected them to be better equipped to interpret the Constitution than an ideological politician.

The lieutenant governor might not agree. But I am convinced returning to that assumption might go a long way towards having us see ourselves as truly one nation again.

Jack Lessenberry is Michigan Radio's political analyst. Views expressed in his essays are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.