A Supreme Court justice could retire this summer.
Mollie Hemingway thinks Chief Justice Roberts may. Fox News reports that Alito is unlikely to retire. Our own inside sources in the Senate believe a vacancy is more likely than not.
One thing is certain: if a vacancy occurs, our ability to move the court further toward constitutional fidelity will vary based on which justice retires. Replacing Chief Justice Roberts would create a much greater opportunity to shift the Court to the right than replacing Justice Alito or Thomas.
Contrary to widespread belief, we do not have a reliable 6-3 conservative majority on the Court. It functions more like a 2-3-1-3 Court. It is helpful to think of Republican-nominated justices in four tiers. Tier 1 justices are Thomas and Alito. Tier 2 justices are Gorsuch, Kavanaugh and Barrett. Our only Tier 3 justice is Chief Justice Roberts. Thankfully, we do not presently have any Republican-nominated Tier 4 justices, but tragic past examples include Kennedy and Souter, who happily sided with their liberal counterparts whenever the opportunity presented itself.
There is a temptation on the right to lower the standard for a replacement justice based on the quality (or tier) of the justice who departs. In other words, some errantly accept that a Tier 1 justice must be replaced by another Tier 1 justice, while a Tier 3 justice can be replaced by someone similarly less faithful. That temptation could play out this summer amid growing speculation that Thomas, Alito or Chief Justice Roberts might retire.
Some in the establishment have floated Judge Andrew Oldham of the U.S. Court of Appeals for the Fifth Circuit to replace Justice Roberts. At first glance, Oldham seems like an appropriate pick given he previously served as general counsel to Gov. Abbott (R-TX), but a thorough accounting of his record produces legitimate concerns that must be addressed, especially given the availability of other excellent “Green List” prospects.
Among those concerns is Oldham’s support for President Obama’s nomination of leftist Elizabeth Warren for director of the Consumer Financial Protection Bureau (CFPB). Oldham joined other Harvard graduates in promoting Warren as having a “first-rate intellect that is combined with an ability to discern and balance the competing concerns that shape law and policy.” Warren has shaped law and policy to benefit the radical woke Left, and Oldham was wrong to promote her.
To be clear, it would have been understandable for Oldham to be kind to Elizabeth Warren, but he was wrong to promote her to “shape law and policy.” It must be noted that—unlike Oldham—many conservative and constitutionalist Harvard students did not endorse Warren. Recommending Warren seems like something that the overly conciliatory John Roberts would do. Perhaps that is why some see Oldham as an apt replacement for Roberts.
Why take a risk with Oldham when there are at least six more reliable Green Listers? One of those Green Listers is Missouri Attorney General (now FBI Co-Deputy Director) Andrew Bailey. Bailey has no baggage his record as a state AG demonstrates aggressive protection of life, religious liberty, the Second Amendment and more, while standing courageously against the radical transgender mutilation of our children.
Not to mention others on the Green List, such as John Sauer, Solicitor General of the United States, who previously clerked for Justice Scalia or James Ho, a Trump-appointed Court of Appeals Judge who spent time under current Justice Clarence Thomas.
As President Trump considers his next justice, it is clear from his public statements that he wants a trusted, reliably constitutional justice. The way to arrive at that result is for us to do the hard work of research, analysis and respectful debate. That approach will put the nation in the best position to land a Tier 1 justice.
Regardless of whether retirement comes from a Tier 1 justice like Thomas or Alito or a Tier 3 justice like Chief Justice Roberts, President Trump seems poised to nominate a proven Tier 1 originalist. Aiming for anything less risks squandering a generational opportunity. We cannot afford “trust us” nominations—the evidence must be clear, and the standard must be proven constitutionalism.
Walker Wildmon serves as the Chief Executive Officer and a Member of the Board of Directors for AFA Action, the 501(c)(4) governmental affairs affiliate of American Family Association (AFA). He is also the Vice President of American Family Association. He has been quoted by CNN, Fox News, and other major news outlets. Walker graduated from Mississippi State University with a degree in Political Science. Walker and his wife, Lexie, are happily married with five children.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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