Posted by Curt on 7 July, 2015 at 6:49 am. 1 comment.


Ed Morrissey:

It’s a safe bet that Hot Air readers aren’t ready for Eric Holder to take a seat on the Supreme Court. Perhaps surprisingly, Eric Holder agrees, although almost certainly not for the same reasons. His demurral may seem a little surprising, but it’s worth noting in the context of the stakes for the next election:

Eric Holder Jr. has returned home to Covington & Burling after more than six years as U.S. attorney general, and he said it is the “last stop” in his legal career. He even ruled out a U.S. Supreme Court appointment, if he is asked.

That means that if Hillary Clinton were elected president and offered him a seat on the high court, he would have an answer ready.

“I’d say, ‘Madame President, with all due respect, you need to pick somebody who’s a) younger and b) who’s a lot more interested,’ ” Holder said in a candid interview with The National Law Journal at Covington’snew office in downtown Washington.

Holder, 64, explained that after he served as a District of Columbia Superior Court judge for five years earlier in his career, he decided that judges were referees, and “I want to be a player.”

We’ll get back to that point in a moment. It’s not likely that Holder would make the short list for Hillary Clinton anyway, for two good reasons. First, Holder is too connected with Barack Obama and the scandals of Operation Fast and Furious and the surveillance of reporters. Even if she managed to overcome Obama fatigue to win election, she’d have her eye on the next election and the avoidance of George H. W. Bush’s fate in a re-election bid. Tying herself to the man who earned a contempt citation from Congress isn’t the way to become her own person, and a Republican-controlled Senate would make it a miserable prospect. Secondly, he’d be 66 years old by the time Hillary got to choose an appointee, and presidents are now looking for younger candidates for longer periods of influence.

However, even the very idea highlights how important it is for Republicans to get this next election right. The power to appoint federal judges is always a big consideration, but it’s even more important than ever in this election. It’s almost certain that two and possibly three Supreme Court seats will be up for grabs in the next few years, which makes this a momentous election just on that basis alone. However, thanks to Obergefell, it’s become even more critical. That decision abandoned precedent and federal jurisdiction for the “reasoned judgment” of nine unelected and unaccountable jurists to carve out a new positive right as a federal mandate on states. Chief Justice John Roberts excoriated the majority on this arrogation of legislative power:

To be fair, the majority does not suggest that its individual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. Ante, at 10, 11. The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner. See 198 U. S., at 61 (“We do not believe in the soundness of the views which uphold this law,” which “is an illegal interference with the rights of individuals . . . to make contracts regarding labor upon such terms as they may think best”).

Justice Antonin Scalia was even more scathing in his dissent about Kennedy’s use of “reasoned judgment” over the rule of law and the separation of legislative and judicial functions:

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