Misrule of Law

This essay appeared in American Greatness on March 6, 2019 (here). Thank you, How Appealing! And Real Clear Policy (here)!

Newly-elected Sen. Josh Hawley (R-MO), who handily defeated the incumbent, Democrat Claire McCaskill, in November 2018, is a former Supreme Court clerk who previously served as Missouri’s Attorney General. At age 39, he is the youngest member of the U.S. Senate. Generally regarded as a rising star, the cerebral Hawley was named to the Senate Judiciary Committee, a plum assignment for a freshman. Yet, just months after taking the oath of office, Hawley was recently blasted—twice—by the Wall Street Journal, which not only accused him of “bad judgment” but nastily remarked on his youth and physical appearance (referring to him, oddly, as having “a lean and hungry look”).

What apostasy did Hawley commit to warrant such opprobrium? Did he sell out to Planned Parenthood, endorse the Green New Deal, or betray the Republican platform? No, Hawley had the temerity to express concern about a pending judicial nominee to the D.C. Circuit, widely viewed as the second-most-important court in America, next to the Supreme Court. Hawley questioned the judicial philosophy of Neomi Rao, President Trump’s choice to replace Brett Kavanaugh on the appellate court that often serves as a stepping stone to the High Court (as it did for Kavanaugh, Chief Justice John Roberts, Justices Ruth Bader Ginsburg and Clarence Thomas, and the late Antonin Scalia). Hawley stated that he had reservations about Rao’s position on Roe v. Wade—the notorious activist ruling that invented a constitutional right to abortion out of whole cloth—and also concerns about the extent of her opposition to the doctrine of “substantive due process.”

For this, the Wall Street Journal berated him  for applying a “litmus test,” “inhaling rumors,” and attempting “to make himself a hero of the anti-abortion right.” Let me be clear that I am agnostic about Rao, who cleared the Judiciary Committee (with Hawley’s support) despite this kerfuffle. Trump has done a superb job so far appointing sound judges to the federal bench, and I have no inside information suggesting that Rao is unfit or unqualified. The Left, in its typical fashion, opposes Rao based solely on op-eds she wrote for her college newspaper decades ago. But this alone is not a basis for conservatives to blindly support a nominee, because the Democrats oppose all of Trump’s judicial nominees. Federal judges, once confirmed, serve for life, and it is an unfortunate fact of life that judges appointed by Republican presidents have often disappointed—on the Supreme Court and the lower federal courts.  Some of the worst Supreme Court justices of the 20^th century, including Earl Warren, William Brennan, and the author of Roe v. Wade, Harry Blackmun, were appointed by Republicans. And don’t forget David Souter, another dud.

For this reason, judicial nominees warrant careful scrutiny prior to confirmation, and any substantial doubt about their judicial philosophy should be resolved against the candidate. Hawley was selected to serve on the Judiciary Committee because of his legal acumen and extensive experience as a constitutional litigator. After being burned so many times, conservatives should support rigorous due diligence for lifetime appointments. The most troubling aspect of the Wall Street Journal’s criticism of Hawley is the manner in which it dismissively poo-pooed the basis for his reservations about Rao. “Substantive due process,” the Journal lectured, “has been misused, but it is by now deeply embedded in Supreme Court precedent.”

The Journal went so far as to defame the late Justice Scalia by stating that he was guilty of using “substantive due process” himself, as if to suggest that “we’re all activists now.”  This is assertion is so misleading as to be fraudulent. While it is true that Scalia voted to apply the Second Amendment to the states in McDonald v. Chicago (2010) pursuant to the well-established “incorporation doctrine,” the term “substantive due process” is universally understood to refer to the judicial concoction of “rights” that appear nowhere in the Constitution, by conjuring substantive meaning from the “due process” clause of the 14^th Amendment. “Due process” connotes procedural protection—the requirement of a hearing before the government takes adverse action. Reading “due process” as a constraint on the states’ inherent police power is pure judicial usurpation—a transparent ploy to enact a “living Constitution.” The Warren Court used this bogus theory to “recognize” a right to sexual privacy in Griswold v. Connecticut (1965), and continued down this activist path with Roe v. Wade (1973) and fabricating a right to same-sex marriage in Obergefell v. Hodges (2015).

In its second attack on Hawley, the Journal acknowledged that the incorporation doctrine and substantive due process are two separate things, but snidely suggested that Hawley had “changed his legal story.” This is risible. All legal conservatives recognize “substantive due process” as being synonymous with progressive activism, exemplified by Justice Anthony Kennedy’s “mystery passage” in Planned Parenthood v. Casey (1992): “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This is the type of psycho-babble folderol that activist judges use to impose their policy preferences on the American public.

Sen. Hawley’s opposition to “substantive due process” should be applauded, not decried. Phony theories of constitutional law represent an illegitimate power grab by the imperial judiciary. The Senate can and should ferret out nominees who support this bogus doctrine. The nation would not be in its current predicament if we had more Senators of Hawley’s discernment and attentiveness. Please, Sen. Hawley, keep it up.

P.S. Josh Hammer has some further thoughts at The Daily Wire (here).