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Nuke the SCOTUS Filibuster and Nominate Bill Pryor for Scalia’s Seat

With a big caveat for the institutional dignity of the polling profession, it was a pretty remarkable evening.  The GOP’s retaining control of the U.S. House of Representatives was called early on, as was expected.  The U.S. Senate result is perhaps the single best item of news for conservatives: huge, huge credit is due for Pat Toomey in Pennsylvania and Ron Johnson in Wisconsin—both men having consistently trailed in the past few months of polling.  Todd Young of Indiana, Richard Burr of North Carolina, and Roy Blunt of Missouri all fairly easily prevailed.  In New Hampshire, Kelly Ayotte’s race is, as of this writing, still too close to call.  At maximum, Democrats will flip two seats; if Ayotte prevails, they will just have flipped Illinois (pending the results in Louisiana’s upcoming December runoff, but the Republican John Kennedy will be a strong favorite).

At the gubernatorial level, conservatism is set to suffer a substantial defeat in the Tar Heel State, with Pat McCrory unfortunately trailing right now by a little under 5,000 votes.  On a more personal level, I am very excited for Governor-Elect Eric Greitens in Missouri, who is my fellow Jewish Republican and Duke Blue Devil (quite unlike me, Mr. Greitens has a Ph.D. from Oxford and is a former Navy SEAL…but, I digress).

And then, of course, we get to the jaw-dropping presidential race.  For nearly nine months now, I have been one of the most stridently #NeverTrump conservative contributors to a largely #NeverTrump conservative website.  I have no regrets about my personal refusal to vote for Trump, and I stand by what I wrote on Election Day about the need for a long-term conservative restorative project.  But, while our principles are timeless and worthy, the need for grace and humility is crucial.  Erick has already done a great job of writing about this here, here, and here.

The staggeringly awesome schadenfreude of Leftist tears today will temporarily mask the difficulty of the henceforth delicate calibration project on which movement conservatives must hone in: that between the need for vigilance over Trump’s inevitable deviations from conservatism and the need for large quantities of grace, humility, and humble pie.  There isn’t an easy answer to be found there.  I hope Sens. Cruz/Lee/Rubio/Sasse/etc. and Reps. Ryan/Jordan/Mulvaney/Bridenstine/etc. keep watching Trump like a hawk, and that they do not obsequiously defer for reasons of pure partisanship like congressional Republicans did far too often during the second term of George W. Bush’s presidency.  The need to prevent the possible long-term conflation of certain aspects of Trumpism (trade protectionism, rejection of some basic separation of powers norms, anti-Citizens United/free speech rhetoric, etc.) with conservatism is acute.  We must be simultaneously humbled in the face of our getting this election wrong and unapologetic in our defense of our values.  With regards to Donald Trump’s character flaws and what I have viewed as demagogic and/or pseudo-authoritarian inclinations, I genuinely and sincerely hope to be proven wrong by his words and actions.  He will be the nation’s Commander-in-Chief, and he will be the de facto leader of my political party.  We must all now give him a clean slate on which to start.

Perhaps the easiest way for President Trump (that still feels so weird to say) to curry immediate favor with his conservative skeptics would be to follow through on his oft-repeated vow to fill the late Antonin Scalia’s vacant U.S. Supreme Court seat with a rock-ribbed originalist jurist.  In May, I responded to Trump’s initial unveiling of his SCOTUS judges list by referring to it as both “objectively good” and “objectively irrelevant.”  I stand by the former and hope to be proven wrong on the latter.  With immense credit to Sens. Chuck Grassley and Mitch McConnell for holding the line on what turned out to be a brilliant (also a little lucky?) political calculation, conservatives now stand ready to cash in on their reward.

The first thing that Senate Republicans ought to do, with respect to the nomination, is make Democrats pay for Harry Reid’s having brazenly opened up the floodgates of trimming judicial nomination filibustering (for all non-SCOTUS judicial nominees) back in 2013.  There is simply no plausible argument that, had Democrats regained U.S. Senate control and installed Chuck Schumer as Majority Leader, they would have done anything other than exercise the nuclear option on what remains of the judicial nomination filibuster—namely, for SCOTUS seats.  They all but openly bragged about it.  And now they should pay for it.  Republicans should nuke the SCOTUS filibuster and place SCOTUS nominations at the same lower procedural hurdle which Harry Reid and the Democrats made the new normal for all other judicial nominations in 2013—which is to say that it should be with a bare majority vote.

Upon so doing and, assuming that the Federalist Society and the Heritage Foundation still have Trump’s ear (a fairly safe bet, at least for now), conservatives have truly wonderful options at their disposal.  Trump’s two released SCOTUS judges list have been genuinely excellent, and I know of few card-carrying members of the legal conservative movement who think otherwise.  As I wrote in May:

The list is objectively a good one.  As my friend Josh Blackman notes, these are serious originalists—jurists who are deeply committed to applying the Constitution’s original meaning.  Of the federal appellate judges, Diane Sykes and William Pryor—the two names Trump had previously explicitly floated—are absolutely rock-ribbed stalwarts in the legal conservative world.  Steven Colloton is also nothing if not solid.  Of the state court judges, Thomas Lee—the older brother of Senator Mike Lee—and David Stras are both wonderfully incisive legal minds and, furthermore, are genuinely good men.  Allison Eid is another great pick, and Don Willett, while known for his “Tweeter Laureate of Texas” bona fides, is also a deeply principled judge who has oftentimes been willing to buck (arguably) sclerotic orthodoxies and rethink some fundamental legal conservative first principles.  And finally, the balance of both federal and state court judge names is intellectually refreshing; not since Ronald Reagan tapped Sandra Day O’Connor has a state court judge skyrocketed straight to SCOTUS.

Before I became #NeverTrump in early March, I had actually written in the immediate aftermath of Scalia’s death that I would vote for Trump just to try to save the judiciary.  Here is what I wrote, then:

U.S. Supreme Court Justice Antonin Scalia, a conservative colossus, sadly passed away.  In the U.S. Senate, Chuck Grassley and Mitch McConnell have sworn to hold the line until November.  If they do not fold, then the very balance of power of the Supreme Court lies with this presidential election.  Suffice it to say the stakes are very, very high.

Normally, of course, I would have borderline zero confidence in the quality of President Trump’s judicial nominations.  But, as it stands, Trump actually recently spoke on this following the South Carolina debate, and he spoke quite well in identifying possible Scalia replacements: Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit, and Judge William Pryor of the U.S. Court of Appeals for the Eleventh Circuit.

You’ll note that two names were repeated there in each piece: Diane Sykes and Bill Pryor.  While I cannot emphasize enough how excellent, from top to bottom, Trump’s SCOTUS lists are, I do think the final nomination decision likely comes down to these two.  (If I had a third finalist, incidentally, I would choose Justice Thomas Lee of the Utah Supreme Court.)  Both are stalwart on the juridical merits, come from the nation’s heartland, and were educated outside of the Ivy League.  Sykes has both state supreme court and federal appellate court experience, and, to the extent conservatives are interested in playing the identity card, happens to be a woman.  Pryor is a former state attorney general who, unlike Sykes, is a straight white man.

For whatever it may be worth, I would go with Bill Pryor as my single top choice to replace Antonin Scalia’s vacant seat.  I have never personally met Judge Pryor, but I have good friends very close to him (I think it is imprudent to elaborate any further than that), and my understanding is that he is a righteous and upstanding man.  He is certainly a man of deep piety.

What is even more undeniable is his movement conservative, originalist, textualist bona fides.  I do not frankly care in the slightest about playing the identity politics game, especially after President Obama’s nominee himself happened to be a straight white man.  I suspect the Trump inner circle, moreover, has even less interest in playing the identity politics game than I do.  Besides age (Pryor happens to be younger than Sykes by about four and a half years), pretty much all I care about is ideological purity.  And Pryor is close to impossible to beat on this front.

Pryor is personally pro-life without exception, and has described Roe v. Wade as “the worst abomination in the history of constitutional law.”  He even doubled down on defending that prior-held belief, at his hotly contested appellate court confirmation hearing:

“I stand by that comment,” Pryor said.  “I believe that not only is [Roe] unsupported by the text and structure of the Constitution, but it has led to a morally wrong result.  It has led to the slaughter of millions of innocent unborn children.”

Pryor is properly skeptical of the legal malarkey (however one feels on the underlying policy merits) of the landmark Miranda v. Arizona case—thus evincing his willingness to flout flawed legal precedent and stare decisis norms, even in the context of a nearly-unanimously popular underlying policy—and is properly skeptical of most Eighth Amendment challenges.  He has upheld voter ID legislation, and can be more generally counted upon for all the constitutional issues near and dear to the hearts of conservatives: Second Amendment rights, religious liberty, structural federalism, and others.  In the realm of statutory interpretation, he is a reliable textualist.  And, largely due to his comments on abortion during his confirmation hearing, his nomination would be a delectably aggressive culture war salvo against a vapid and sclerotic progressivism that was just electorally obliterated last night.

From an additional pragmatic standpoint, Pryor also happens to be from Alabama.  Senator Jeff Sessions, currently an influential Republican on the Judiciary Committee and soon to be an influential Republican in the Trump Administration, also happens to represent Alabama.  Sessions can help personally sell Trump and the Senate on Judge Pryor’s merits, if need be.

Once Senate Republicans nuke the judicial filibuster, conservatives will have an abundance of riches at their disposal.  There are many, many good jurists whom conservatives might consider in choosing who ought to fill Antonin Scalia’s vacant seat.  Personally, I would seek to fill the void left by the intellectually brilliant, originalist, textualist, devout Catholic Scalia with a fellow precocious, originalist, textualist, devout Catholic stalwart: Judge Bill Pryor of the U.S. Court of Appeals for the Eleventh Circuit.


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