The Phyllis Schlafly Report
by John and Andy Schlafly
President Trump has a golden opportunity to surpass Reagan on the all-important issue of the Supreme Court. With a good pick to replace Justice Anthony Kennedy, Trump can achieve what Reagan could not.
As good as Reagan was, two out of his three Supreme Court Justices were disappointments. Reagan’s first selection was his worst, and Trump’s advisors should take care not to allow history to repeat that mistake.
Reagan chose Sandra Day O’Connor after she was inadequately vetted as to her liberal positions on abortion, the Establishment Clause, and feminism. Reagan erred by picking her because she was the first he interviewed for the job, without Reagan bothering to interview the other candidates.
Immediately it was obvious that Reagan and his advisors had blundered. Although Reagan had promised to nominate the first woman to the Supreme Court, his more important promise was to appoint pro-life judges and yet he broke that pledge with his first nominee.
Let’s do as Reagan said when he urged a “trust but verify” approach. Whether by mistake or design, there are several candidates on Trump’s list who should not be nominated for Kennedy’s seat.
One candidate would fail to honor Trump’s pro-life pledge, and another would violate Trump’s Second Amendment pledge. The selection of either would be a devastating setback to the Trump agenda.
Ms. Joan Larsen was a volunteer for Joe Biden for president in 1987, where she helped with mailings and telephoning for Biden's campaign as she admitted on her Senate questionnaire. That political work for Biden is not something a pro-lifer would do.
Ms. Larsen has claimed there is sexism in the career of law, a common refrain by those who support abortion under the guise of equal rights for women. She has encountered Roe v. Wade often, without criticizing it.
Ms. Larsen, who kept her last name after marrying a law professor, is touted by her supporters as having been a law professor herself at the liberal University of Michigan law school. But in fact she never obtained a tenured chair, and her writings are not up to the level of real law professors.
The other candidate on the short list who should not be picked is Raymond Kethledge, whose selection would violate Trump’s pledge on the Second Amendment. Judge Kethledge notably failed to support the “strict scrutiny” standard for the Second Amendment that is essential to safeguarding the right to keep and bear arms.
Sixteen years of court-packing by Presidents Clinton and Obama have left most of our Nation’s population under pro-gun-control Courts of Appeals. The population-heavy 2nd, 3rd, 4th, 7th, 9th, 11th, and D.C. Circuits are all dominated by judges who refuse to treat the Second Amendment with the same respect they give to the First Amendment.
Justice Clarence Thomas laments how gun control laws are being upheld by the Courts of Appeals, and then petitions to the Supreme Court to review those decisions are being denied. Justice Thomas explained in February, in his dissent from one of those denials of cert, that the strict scrutiny standard of review used for the First Amendment is not being applied as it should be to the Second Amendment.
Yet there Judge Kethledge was in 2016, refusing to join an opinion by conservative judge Danny Boggs to adopt the strict scrutiny standard of review for the Second Amendment in the Sixth Circuit. Kethledge typifies the problem that Justice Thomas subsequently highlighted in explaining why gun control laws are not being overturned.
In Sherlock Holmes’ classic “Silver Blaze,” the compelling evidence overlooked by Scotland Yard was the failure of a dog to bark when a midnight visitor stole a prized racehorse away from his stall. That meant the dog knew the criminal, and the compelling evidence of silence should be a criterion in vetting the replacement for Justice Kennedy.
Many important decisions are made by the Supreme Court in refusing to grant a petition for cert, as it did earlier this year in denying David Daleiden’s petition concerning the infringement on his rights by the Ninth Circuit. By denying that petition and others like it, the Supreme Court allows anti-life, and anti-Second Amendment, rulings by liberal appellate courts to stand.
We do not need justices who are timid about speaking out or reviewing and reversing liberal decisions that come out of the Ninth and other Circuits. Similarly, we do not want a nominee who is unwilling to overturn prior mistakes of the Supreme Court itself.
Of all the pitiful clamor by Democrats and a few liberal Republicans, the most preposterous is their demand that the nominee refuse to overrule Court precedent. Every year the Supreme Court overturns its own mistakes, as it should, including its recent overruling of its own precedent of 41 years ago that wrongly imposed mandatory dues on government employees.
John and Andy Schlafly are sons of Phyllis Schlafly (1924-2016) and lead the continuing Phyllis Schlafly Eagles organizations with writing and policy work. These columns are also posted on pseagles.com.