Friday, June 29, 2018

Replacing Justice Kennedy: What kind of Conservative Will President Trump Pick?

Replacing Justice Kennedy: What kind of Conservative Will President Trump Pick?

by Alan M. Dershowitz  •  June 29, 2018 at 1:43 am
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  • They [potential nominees to the Supreme Court] should be asked about the criteria they apply in determining whether to be bound by past decisions.
  • As the late Justice Antonin Scalia frequently pointed out, his oath of office required him to apply the Constitution, not the decisions of his predecessors on the bench, if those past decisions were wrong.
  • The second position is that Roe v. Wade was wrong when decided but it has been the law for 45 years, and the nation has come to rely on it as governing law. Accordingly, it should not be overruled, but nor should it be expanded. This is the most likely position that a successful nominee might take.
Justice Anthony Kennedy. Among the key issues that may influence President Trump's decision on whom to nominate to replace the retired judge will be the candidate's view on Roe v. Wade. (Photo: Eric Thayer/Getty Images)
The two key words in assessing the President's nominee to replace Justice Anthony Kennedy are stare decisis. This ancient Latin phrase, which means let the decision stand, represents a conservative approach to judging: that precedent imposes constraints on judicial innovation. Put another way, that judicial innovation should be balanced against the need to maintain stability in our legal system. But like most legal terms, stare decisis can easily be manipulated to benefit both conservatives and liberals. Traditionally it has been conservatives who have embraced stare decisis, allowing the dead hand of the law to constrain the living constitution. But liberals, too, embrace the concept when they seek to preserve old precedents that are important to them.


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