After the announcement of the retirement of Associate Justice Anthony Kennedy earlier this week, President Trump has yet another historical opportunity to nominate a justice to the United States Supreme Court, a justice who will follow the Constitution, not rewrite it.
Recall the words of President Trump which he repeated throughout the presidential campaign when he said:
“We have a very clear choice in this election. The freedoms we cherish and the constitutional values and principles our country was founded on are in jeopardy. The responsibility is greater than ever to protect and uphold these freedoms and I will appoint justices, who like Justice Scalia, will protect our liberty with the highest regard for the Constitution.”
A few days after the election, I penned a column as a reminder to all of us the significance of the four simple words “” which are inscribed on the portico of the United States Supreme Court building in Washington, D.C. While simple, those four words, that simple phrase, should have a profound meaning for all of us, especially those who seek justice before the highest court in the land.
As I wrote then, and as we all understand, words alone cannot guarantee justice. Instead, equal justice under law can only be assured if those justices who are chosen to serve on the Supreme Court consider those words to be the very foundation of their service on the Court. Those who serve on the Supreme Court need to be men and women of distinction who will interpret the law, not rewrite it.
So why should we care who President Trump nominates to fill the vacancy of Associate Justice Kennedy? One the best reasons we should deeply care about who is nominated to this most important position would be to take just a moment and consider the words of the late Justice Antonin Scalia when he said, “If we're picking people to draw out of their own conscience and experience a ‘new’ Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless.”
The most important reason to care about President Trump’s next nomination for justice of the Supreme Court is that the next justice will likely serve for the next three decades. As such, we should want a justice who will uphold the few religious freedom victories of the past Supreme Court terms.
So again, why should we care? We should care because religious freedom is under attack in this country. We need to hold onto the victories of the past terms which handed us a religious victory in the Hobby Lobby case which upheld the Free Exercise Clause of the First Amendment and struck down the contraceptive mandate of the Affordable Care Act. We need to hold onto the victories of the past terms which handed us another significant victory in Trinity Lutheran case which struck down Missouri’s denial of a taxpayer grant for playgrounds to nonprofits when it held that Missouri’s decision to deny Trinity Lutheran the same benefits was unconstitutional and penalized the school’s free exercise of religion guaranteed by the Constitution.
Next, and even more importantly, for anyone who follows the ongoing attacks on our religious liberty, there is one other significant religious freedom case from this year’s term of the Supreme Court which bears consideration, the decision in the Masterpiece Cake case. Although the decision in the Masterpiece Cake case provided religious baker Jack Phillips a very narrow victory which focused on the hostility of the Colorado Civil Rights Commission toward his religious views, the decision failed to address the more important issue of the right of a person to the free exercise of religion. As a result of the failure of the Supreme Court to address the more significant issue of the Constitution’s guarantee of the free exercise of religion, there is little doubt that the religious freedom issue which was avoided in the Masterpiece Cake case will again find its way to the Supreme Court next term.
Finally, at the risk of being criticized for interjecting myself into President Trump’s decision of which of the many qualified men and women who President Trump should choose to nominate to fill Justice Kennedy’s seat on the Supreme Court, let me again suggest Judge Amul R. Thapar. Judge Thapar was named on President Trump’s list of respected people who in the President’s words “are the kind of scholars that we need to preserve the very core of our country and make it greater than ever before.” Judge Thapar is also a person who believes the words “Equal Justice Under Law” are the very foundation and cornerstone of each case which he has considered, and each and every case he will be asked to consider.
At the end of the day, there is little doubt that if nominated to fill Justice Kennedy’s position on the Supreme Court, Judge Thapar would be confirmed and approved by the Senate. Simply stated, if nominated and confirmed to fill Justice Kennedy’s position on the Supreme Court, Judge Thapar would apply equal justice under law to all who would appear before him and the highest court in the land. Judge Thapar would follow the Constitution, not rewrite it.
So, as I often do, I would invite each of you to join me on my imaginary mountaintop which this time is located across the street from the Whitehouse and help me shout as loudly as possible to President Trump to nominate Judge Amul R. Thapar to fill the vacancy of Associate Justice Anthony Kennedy.
Mark Wohlander, a former FBI agent and federal prosecutor worked for Judge Thapar when he was the United States Attorney and has appeared before Judge Thapar in dozens of cases.
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