On Thursday, Daily Wire Editor-in-Chief Ben Shapiro appeared on Fox Business’ “Kennedy” to discuss the judicial pick President Trump will announce Monday for the Supreme Court. Shapiro began by asserting his preferred choice would be Utah Senator Mike Lee because people would know exactly how he’s going to vote on every issue.
Shapiro also ripped the judicial selection process, stating that it was “incredibly irritating,” adding, “ … what you get is a bunch of inane questions about ‘How much do you like Roe V. Wade?’ and you have somebody say, 'Well, you know, it’s precedent,’ which means nothing.”
Shapiro concluded that his second choice would be Amy Barrett, commenting, “If they want to go after a 46-year-old mother of seven who happens to be Catholic and who has written extensively of Catholicism and the law … Let the Left go after her. I don’t know why people would shy away from a fight here. The more extreme the Left looks, the better it is for President Trump.”
Kennedy began the exchange asking, “What do you think of the president’s top three picks? The people that we’re hearing so far, and do you think that this actually is the final list, the final three?”
Shapiro responded, “My guess is that it probably is the final three; I’m hearing from a lot of folks inside the administration, which is too bad. I think that Mike Lee, from Utah, would have been the best pick—“
Kennedy interjected, “Hear, hear, Ben Shapiro!”
Shapiro continued, “—simply because you know exactly how he’s going to vote on every issue. He’s a senator, so he probably sails through without any problem. And you’re not going to have to worry about his legal interpretation, since he’s been on the record about virtually every issue as a senator.”
One of the big problems with how we do these judicial selections is that you have to draw a balance between what you know about these nominees and what you don’t. If you pick somebody with a clear, convincing record of originalism, then the Left is more likely to tank them, just as they did Robert Bork back in the 1980’s. If you know how they feel about Roe V. Wade, then that’s going to lead the Senate to shut them down, so instead what you get is a bunch of inane questions about “How much do you like Roe V. Wade, and you have somebody say, “Well, you know, it’s precedent,” which means nothing. There are lots of cases that have been precedent. It’s incredibly irritating how we do these judicial confirmation hearings. You don’t learn anything new about these folks, which is why the vast majority of people who are even brought up for the hearings, unless they are wildly unqualified, like Harriet Miers, for example, end up on the Supreme Court.
Kennedy noted Senator Ted Cruz had written a piece for Fox News stating that if you don’t want surprises, then you should probably pick someone who had a very consistent philosophy, who would follow through on that judicial philosophy for decades to come. Kennedy said, “All we can hope is that his unpredictability rears its head once more here, and that Mike Lee is his surprise pick on Monday.”
I hope so, too. The other three picks, I think all of them are fine. I do have my preference; I think that Coney Barrett would be the best, followed by Kethledge and Kavanaugh. I have the most doubts about Kavanaugh, simply because having read many of his decisions, it seems that he’s very much in the line of Justice Roberts, which could mean too clever by half. I think he’ll probably be more solidly textualist than Roberts has been, but remember that when it came to Roberts’ opinion on Obamacare, the very basis of that opinion, which suggested that Obamacare was a tax rather than a fine, that logic came from a Kavanaugh opinion on the D.C. Court of Appeals. So I’ve got problems with Kavanaugh in general; he’s being pushed very hard by a lot of folks from Team Bush, who knew him way back when and are very fond of him. He’s kind of the D.C. insider pick. I think that Kethledge or Barrett would probably be more solid in terms of what originalists are looking for.
Kennedy spoke of Barrett, commenting that she has a “more informed philosophy based on her religion, and you can see that the Left will adamantly go after someone like that.”
This is exactly why Trump should pick her, frankly. The fact that the Left is going to attack an observant Catholic for being an observant Catholic is going to win him Pennsylvania, so I don’t see the reason in shying away from that fight. If they want to go after a 46-year-old mother of seven who happens to be Catholic and who has written extensively of Catholicism and the law, she’s said, for example, that judges in death penalty cases who are Catholics, observant Catholics, should recuse themselves rather than ruling on the death penalty; she said, however, that abortion is more a matter of public policy than death penalty in individual cases.
Let the Left go after her. I don’t know why people would shy away from a fight here. The more extreme the Left looks, the better it is for President Trump. And attacking an articulate, excellent candidate with a great story like Amy Barrett, I just don’t see how that hurts President Trump in any way.