Every day, President Trump’s tweets makes headlines. Yet one last month made waves that some observers believe could affect the November elections.

This summer conservative positions on pro-life policies and religious liberty faced defeat at the U.S. Supreme Court. Perhaps Trump sensed that his base was hardly pleased with these outcomes. After all, in 2016, the issue of judicial nominations motivated 70 percent of Americans who supported him. So Trump doubled down. 

“I will be releasing a new list of Conservative Supreme Court Justice nominees,” tweeted Trump. “[It] may include some, or many of those already on the list, by September 1, 2020.

“If given the opportunity, I will only choose from this list, as in the past, a Conservative Supreme Court Justice.”

Drama Escalating Around High Court

Politico reported that this tweet sent White House aides scrambling to reconsider their existing list of 24 potential nominees. (The task took a more pressing turn with news Justice Ruth Bader Ginsburg is again battling cancer, and just days ago was hospitalized again in connection with an unrelated bile duct issue.)

Senator Josh Hawley, R-Mo., has been outspoken that the existing nominations process for the GOP has been a “disaster.” Additional reporting has questioned whether religious conservatives have input in the vetting of judicial prospects.

One practicing attorney in Birmingham, Ala. has been a rising voice among conservative court observers. Phillip Jauregui of nonprofit group Judicial Action Group researches potential nominees in hopes such analysis will inform the larger process. “A judge’s job is to decide cases and controversies, not to legislate from the bench,” said Jauregui in a phone interview. “And I believe they need to have a constitutional judicial philosophy.”

He views the current moment as a window of opportunity. Last week, Judicial Action Group rolled out what it terms The Judicial Standard with five specific planks to consider regarding judicial prospects.

Speaking from his office in Birmingham, Jauregui sums up his recent disappointments on the court, the principles he adheres to, and his outlook for the months ahead.

Principles In the Balance

Why is the Supreme Court so important to conservatives?

Phillip Jauregui: The Supreme Court has become the branch that decides the most important policy questions in our nation.

Of course, the Constitution doesn’t give it that power. But that’s the power that the court has given to itself over the last few decades. Today, it functions like an unaccountable judicial oligarchy.

The issue could be abortion, marriage, or whether the president has the power to issue executive orders. All these matters are ultimately being decided by the high court. That’s why the Supreme Court is vitally important.

Critics even on the right say that conservatives place too much importance on the high court. In June, a case to uphold commonsense regulations on abortion failed. So why bother with further pro-life efforts in the courts?

Jauregui: Conservatives could ignore the Supreme Court — if Justices went back to doing their job. That would mean deciding cases according to the laws that are passed over in Congress. Judges are not to legislate from the bench and create new so-called rights like abortion. So it would be wonderful if conservatives could just focus on congressional and presidential elections.

Let’s say conservatives win and achieve great pro-life and other victories on social issues. Right now, due to dishonest referees over in the judiciary, those victories are being stolen. So conservatives have to deal with the Supreme Court institutionally or any other victories will ultimately be stolen.

Decisions That Disappoint

Recent opinions were handed down from Justices Gorsuch and Roberts that concerned conservatives. Could you sum up those key decisions?

Jauregui: The most concerning opinion this summer was the Bostock case. It literally rewrote the 1964 Civil Rights Act to include “homosexuality” and “transgenderism.” Those are terms that were not in the law. In order for those classes to be protected, Congress would have needed to amend the law — which they actually tried to do a number of times over the decades.

To say this is deeply disappointing for conservatives is an understatement.

In the majority opinion, Justice Gorsuch literally wrote ‘transgender’ into the Civil Rights Act. It’s something that he swore he would never do. To say this is deeply disappointing for conservatives is an understatement.

It’s tragic because Justice Gorsuch isn’t up in a primary election next year. He could sit on the court for another 30 years. For him to have this type of thinking and judicial philosophy is shocking and tragic to conservatives.

Another thing about the Bostock case that’s concerning is that, even though Justice Kavanaugh voted the right way, he thought it was the right political result. He even said as much in his opinion. Essentially he wrote: If I were voting as a member of Congress, I would vote for these LGBT-type agenda protections.

But Kavanaugh believed the judiciary was not the branch to do that. So at least he got the institutional question right. Still, the fact that he actually thinks that a funeral home should be forced to hire a man who’s dressing up like a woman is a real problem.

As to Chief Justice Roberts, he has been a deep disappointment the last few weeks. He has voted against constitutionalism and conservatism in most cases.

Roberts flipped his position in the June Medical case. He voted the opposite way previously in the Texas case. Then he voted with the pro-abortion justices in the June medical case. I see no reliability there based on the law. The only reason he would do that is pure politics or catering to the precedent of the liberal majority.

Will New List Reflect A New Standard?

In the wake of these decisions, President Trump has talked about updating his list of prospective judicial nominees. Some voices question if that’s the right approach. How do you see it?

Jauregui: I think it’s half the right approach. He definitely needs to update his list.

The problem with the list is President Trump didn’t come up with it. Advisers came up with it, and it developed through a process. If he doesn’t change the people giving input to the list and doesn’t change the process that developed the list, it’s kind of like just mixing the names around again and pulling a few out. It doesn’t solve the problem.

So, yes, we need a new list. But even more, we need a new process. And we need a standard that we can actually measure these nominees by, to know if they’re acceptable or not.

What are some core values your group advocates should be the standard?

Jauregui: What we call The Justice Standard has several elements. First, anyone who is a prospective Supreme Court Justice should have a long-term record of courage, conservatism, and a constitutional judicial philosophy. What we mean by that is, because they’re a judge, they need to understand the role of the judiciary.

Conservatives need to unapologetically nominate Justices that actually believe in adhering to the Constitution.

Their oath as a Justice is to the original public meaning of the Constitution. That comes first, even if it means they have to rule contrary to precedent. Precedent is simply what other justices have said in the past that they think the law says. But a justice’s oath is not to former justices, it’s to the law itself.

It’s also really important that a conservative president nominate conservatives. Liberals nominate liberals, and it always seems to work for them. Conservatives, for some reason, don’t always nominate conservatives. Maybe that’s the reason we’ve failed over half the time in the last 50 years.

Conservatives need to unapologetically nominate Justices that actually believe in adhering to the Constitution.

When Conservatives Spoke Against Trump Judicial Prospect

Over 200 judges have been confirmed, the Trump administration has touted. In the midst of so many judicial prospects, have some advanced through the process that were not necessarily ‘conservative’?

Jauregui: These 200 or so judges that have been confirmed are probably the best batch of nominees we’ve had in a three-and-a-half-year span from a president. But they’re not all great, and Michigan district court nominee Michael Bogren is a good example.

Bogren was cruising toward confirmation. Thankfully, Senator Josh Hawley, who’s really become a champion on judicial nominations, took it upon himself to step up and research the record.

It’s not true to say that every nominee that President Trump has put up, that they are all wonderful conservatives.

This judicial nominee had taken a controversial stand against a Christian family that had a property that they rented out for weddings. They had a policy as Christians that they would only rent it to weddings that conformed with the Bible, which would exclude same-sex ceremonies.

Bogren had been critical of the family, even comparing them to members of the KKK.

Senator Hawley pointed this out in the hearing and asked the judicial nominee some questions.  Thankfully, because he did the research and did the work, that nominee was stopped. But there have been others as well.

So it’s not true to say that every nominee that President Trump has put up, that they are all wonderful conservatives. We have to be looking at them and researching them. And we need to look no further than the two Supreme Court nominees that we’ve had. They give conservatives a pretty serious cause for concern right now.

What to Watch In Months Ahead

What do you see on the horizon for the high court?

Jauregui: We don’t know when there will be another vacancy on the Supreme Court. It’s possible we could have one before the election. Regardless, conservatives have to be prepared. We don’t know who our next president will be, and we don’t know who will hold the majority in the Senate.

The president is preparing to release a list of Supreme Court nominees on or before September 1st. He said that he’ll choose from that list. So it’s really important to do the work now. Conservatives want to see the right names on that list and to keep the wrong names off that list.

 

Learn more about Judicial Action Group at their website. Watch Senator Josh Hawley address judicial nominations in the video below.

Stream contributor Josh M. Shepherd covers culture, faith, and public policy issues for media outlets including The Federalist. Find him on Twitter and follow The Stream @Streamdotorg.