With the retirement of Justice Anthony Kennedy, President Trump has a second chance to advance his goal of remaking the federal judiciary and the Supreme Court in particular. That’s great news for conservatives, a punch to the gut for progressives and, potentially, a major turning point for the nation.
It is unrealistic to think Mr. Trump can somehow be compelled to select an appointee who falls on the liberal side of the spectrum. That’s not how the system works; like him or loathe him, he is the president, elected in part on a platform that leaned heavily on the promise of a transformed court. Many in the Jewish community, which tilts heavily to the liberal side on many key issues that could be decided by the next court, will cringe at whomever the president appoints, but a significant minority will likely cheer at the prospect of legal U-turns on issues such as abortion and funding for religious institutions.
Like the nation as a whole, our community is divided — unevenly, perhaps, and bitterly for sure — on many of these hot-button issues. But there are qualifications for the next justice that we should all agree on.
This administration has put little emphasis on experience and expertise in appointments to executive positions. That must change as the president considers his Supreme Court nomination.
The federal courts, and the Supreme Court in particular, are no places for amateurs. Constitutional law is vastly complex, the body of precedent immense; a broad and deep knowledge of the legal foundation of our nation is an absolute must for any appointee. So is a rock-solid and demonstrable commitment to the rule of law, doubly important because this president’s own commitment to it has so often been questioned. No government official, including the president, is above the law. Any candidate for the nation’s highest court must understand and accept that concept.
The next justice must display genuine judicial temperament — a default mindset that weighs complex arguments over every issue soberly, thoughtfully and independently, not according to the dictates of ideology. With the nation facing a resurgence of white supremacist, anti-Semitic, misogynistic and anti-immigrant hate, the next justice must show a broad commitment to human rights. The details of how to legally protect rights for all in this diverse and divided nation are complex, but the court is no place for any man or woman with a record of support for those who would deny basic rights to any group. This is not a matter of liberal versus conservative, but of fundamental decency.
The Jewish community remains deeply divided over many church-state issues, but on one most of us can agree: no judicial candidate who espouses the pernicious ideology claiming that America was created as a “Christian nation” and implying that the rights of Christians outweigh those of other religious groups is acceptable in a democracy that still values church-state separation and diversity.
The concept of church-state separation is subject to widely divergent interpretations, but the First Amendment clause stating that “Congress shall make no law respecting an establishment of religion” remains a critical protection for every religious minority, including the Jewish community, and must be understood and respected by justices in our highest court.
For their part, Democratic leaders must resist the temptation to use upcoming Senate hearings to exact revenge on Republican leaders whose shameful treatment of Judge Merrick Garland, a superbly qualified judicial moderate whose 2016 appointment by President Obama was scuttled on purely partisan grounds. The GOP leadership was dead wrong in refusing to vote or even hold hearings on Garland’s appointment. But tempting as it may be, the Democrats would be just as wrong to play a tit-for-tat game that could only deepen the nation’s divisions and further undermine a battered federal judiciary.
There is little doubt that many in a Jewish community that still votes overwhelmingly Democratic and generally steers liberal will be disappointed and maybe outraged at President Trump’s choice. It is right and proper to contact senators and demand comprehensive, probing hearings focusing on the candidate’s qualifications, record and temperament; it’s a waste of time and energy, though, to demand fealty to Democratic Party core principles and agreement on every litmus test social issue. The answer to that disappointment is simple: Go out and vote.