Rabbi Prof. Dov Fischer
Rabbi Prof. Dov Fischer Courtesy

Note: Israel is set to choose 4 Supreme Court justices soon and the daggers are out. While US Supreme Court Justices are chosen differently, the game is the same.

American conservatives like it when liberal Democrat Supreme Court justices are in their 80s, 90s, or hundreds. That increases the chances such justices will be retiring soon — whether of personal volition or upon being summoned by Heaven to give an accounting for recent opinions. The preference is that Heaven ring the bell when a conservative Republican is in the White House, backed by a solid GOP Senate majority to give “advice and consent.” That is what happened when the Notorious RBG conferred on us one meaningful parting blessing, as she exited in favor of Justice Amy Coney Barrett. Thank you, Justice Ginsburg, for that one atonement.

Alas, for half a century BT (Before Trump) it often did conservatives little good having a Republican president and Senate to fill U.S. Supreme Court vacancies — just as a 72-seat right-wing Knesset cannot get its act together to fix Bagat"z (Israel’s top court). At least with Democrats ruling the roost, Republicans knew what to look for, so could mobilize to block a Merrick Garland. By contrast, the RINOs sneaked in equally bad liberals — or even worse. — but without warning. George Bush the Elder actually put David Souter onto the Court. George Bush the Minor tried for Harriet Miers and ultimately named centrist John Roberts, even elevating him to be Chief Justice.

Uh . . . thanks, Dubya.

Nothing in life is perfect, and people’s future courses of conduct and world views can be somewhat unpredictable, but... carefully picked ideological ideologues will vote dependably on the Court...
Richard Nixon tried to give conservatives Clement Haynsworth and thereafter G. Harrold Carswell but instead conferred Harry Blackmun and Lewis Powell on his voters. Although Nixon also selected Chief Justice Warren E. Burger, who was pretty conservative, and William Rehnquist who proved consistently conservative, two out of four is an inexcusably lame record for presidential SCOTUS appointments.

Before the emergence of “woke math,” that was 50 percent, a failing grade. Gerald Ford appointed John Paul Stevens, whose record proved decidedly more liberal than presented. As Charles Lane wrote in the Washington Post, “It is largely because of him that a court with seven Republican-appointed members, and nominally headed by a conservative, Chief Justice William H. Rehnquist, produced a string of relatively liberal results in recent cases.” By contrast, Trump was three for three: Justices Neil Gorsuch, Brett Kavanaugh, and Barrett.

When we look back at Roe v. Wade, 410 U.S. 113 (1973), we are reminded that Nixon’s Blackmun wrote the majority opinion. His Burger wrote a concurrence. Justice Potter Stewart, appointed previously by another Republican president, Dwight Eisenhower, also voted with the Roe majority. So did William Brennan, yet another Ike appointee. Ultimately, Brennan ended up as longest-serving justice in history — and as an acknowledged leader of the Supreme Court’s liberal wing.

Even Ronald Reagan, who did elevate Justice Antonin Scalia, also named Sandra Day O’Connor and Anthony Kennedy. O’Connor voted with the Court’s liberal bloc 28 of 110 times. (No one ever accused Ruth Ginsburg or Sonia Sotomayor of voting conservative 25 percent of the time.) Meanwhile, Justice Kennedy repeatedly broke tight deadlocks by siding against traditional morality on critical social issues. For example, he wrote the majority opinion in Obergefell v. Hodges, 576 U.S. ___ (2015), legalizing (Torah-forbidden) marriages between two same-sex partners. Similarly, Justices Powell, Brennan, and Blackmun were part of the majority who legalized hidden racial quotas in “affirmative action” in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Thus conservative voters’ failed to impact on Supreme Court jurisprudence despite clear Republican electoral majorities.

Nothing in life is perfect, and people’s future courses of conduct and world views can be somewhat unpredictable, but the likes of William O. Douglas, David Souter, Ruth Ginsburg, Elena Kagan, and Sonia Sotomayor demonstrate that carefully picked ideological ideologues will vote dependably on the Court forever, whether leftist like those five or conservative like Justices Rehnquist, Scalia, Clarence Thomas, and Samuel Alito.

Today the U.S. Supreme Court tilts slightly conservative at five (Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) to three (Justices Breyer, Kagan, and Sotomayor), with Chief Justice Roberts wiggling back and forth to maintain an aura of independent and deliberative judicial temperament and cogitation. He can oppose legalizing same-sex marriage and can save Obamacare with the same keyboard. Justice Thomas, at age 73, and Alito at 71 both may have a decade and more of active service left in them, so the present Court seems somewhat securely conservative for the foreseeable future.

Yes, a Gorsuch or a Kavanaugh may surprise on a discrete case matter here or there, but that is not unreasonable. American conservatives should want their SCOTUS and state supreme court justices and lower-court federal and state judges to approach each new matter with an open mind, albeit colored by deeply conservative beliefs and values. A Court that will stand at 5-3-1 for the next 10-15 years is not utopian but is fine.

Indeed, conservatives should consider even more carefully: A close balance, with conservatives winning “on points” rather than by a knock-out or TKO, can prove better than “fine.” When a Supreme Court tilts too far to one side, that overwhelming bias promotes extreme reactions born of hopelessness. If the Court is too predominantly left, conservatives despair of receiving justice. That is toxic and therefore perilous. If too right, then Democrats start pressing to “pack the court.” That is tyranny.

Justice Stephen Breyer is 82 years, 5 months, and approximately a fortnight. His years will exceed 85 when Republicans hopefully take back the White House while retaining majorities in both Houses of Congress in 2024. The Notorious RBG rolled her dice, and her number on line at the bakery was called at 87½ despite desperate leftist pleas that she quit for a younger extreme-left replacement while Obama was in office. She apparently believed the hype about her physical workout regimen, and she also may have perceived perspicaciously that a Merrick Garland never would get past a Mitch McConnell — no matter what — and, at most, one day might hunt down parents of school children as “domestic terrorists.” So she thankfully procrastinated, and we thankfully got Justice Barrett. Not quite a reason to replace the Rosh Hashanah Haftarah with her writings, but still pretty, pretty, pretty good.

Breyer, by contrast, has advanced his agenda, stepping down timely for Joe Manchin of West Virginia to reward his constituency of White male coal miners and their conservative Bible-believing, church-going Christian families by confirming a radical Black woman to be the next Supreme Court justice. It is what it is. The balance of the Court will not be disrupted. Here is why that is OK for conservatives:

1. Justice Breyer was going to be replaced soon anyway. Unlike Roe v. Wade, his age cannot be reversed.

2. Either Biden or Kamala Harris (if the 25th Amendment arises) or Nancy Pelosi (third in line) would be naming Breyer’s successor. Biden is least bad.

3. Inasmuch as the Breyer replacement will not impact public policy all that much, once Democrats get their new Kagan-Sotomayor it will release some of the pent-up frustration that leads to their crazy and destabilizing proposals to pack the Supreme Court, excise the filibuster from the Senate’s toolkit of procedures, and make Puerto Rico and D.C. into states. They will have a snack on which to munch and be placated, yet will be low-hanging fruit.

4. There are only four people whose elevation to SCOTUS would be intolerably vile, but . . .

A. John Kerry is White. So, no go. He is male. So, no go. Equal protection under the law. Judge by the content of character, not the color of skin. All that jazz.

B. Hillary is too old. Also, as with the banana stand, there is money in the Clinton Foundation. And Bill still must be watched.

C. Michele Obama is too disgusting, but also now is too rich and too enthralled with the life of leisure — and her freedom to lecture pompously — to consider it if offered.

D. A thought that should inspire the Woke: If Biden names Kamala Harris to the Court, he thus can kick her out as Veep without the negative fall-out from Black America, whom Democrat slave-masters have in their pockets. At last look, she still is Black. Still is “she/her/hers” binary. Not clear whether she knows how to show Voter I.D. Still is not smart and — nothing personal nor ad hominem here, just the facts — remains situated a bit on the stupid side of the aisle. The Supreme Court could use a good cackle or twenty during oral arguments. Still, it seems doubtful she would get the offer because she really is that stupid, and her year as Vice President has evidenced that she cannot hide it when in the spotlight.

It is what it is. Thanks to Trump, conservatives now have the Court for much of the forthcoming generation, and nearly a century of wasted Republican opportunities are behind. Whether you watched the NFL playoffs last weekend or, like me, just read about them (because, ever since Colin Kaepernick’s kneeling spread, I split), you know that a team that wins on a single blocked punt, a last-second field goal, or by dint of an overtime coin toss is just as successful in recorded history as one that wins by fifty points. We don’t have to win 7-2. While the cannibals munch, we can continue winning 5-4.

Rabbi Prof. Dov Fischer is Contributing Editor at The American Spectator, adjunct professor of law at two prominent Southern California law schools, Senior Rabbinic Fellow at the Coalition for Jewish Values, rabbi of Young Israel of Orange County, California, and has held prominent leadership roles in several national rabbinic and other Jewish organizations. He was Chief Articles Editor of UCLA Law Review, clerked for the Hon. Danny J. Boggs in the United States Court of Appeals for the Sixth Circuit, and served six years on the Executive Committee of the Rabbinical Council of America. His writings have appeared in The Weekly Standard, National Review, Wall Street Journal, Los Angeles Times, Jerusalem Post, Israel Hayom, and The Jewish Press. Other writings are collected at www.rabbidov.com .Adapted by the writer for Arutz Sheva from a version of this article that first appeared here in The American Spectator.

Join our official WhatsApp group