Textualists Survived a Political Dunkirk in 2016

Judicial Crisis Network is helping lift the judiciary out of a sea of watery jurisprudence.

The Resurgent Gathering this weekend included a panel from the Judicial Crisis Network (JCN), a group whose mission is to push back against attempts to bork GOP judicial nominees. Last year, the organization spent $10 million supporting Neil Gorsuch's confirmation. In so doing, JCN helped unify Republican senators and flip three red-state Democrats.

The stakes are even higher now that Donald Trump has nominated Judge Brett Kavanaugh to replace Justice Anthony Kennedy. When Gorsuch replaced the late Justice Antonin Scalia, the Supreme Court's ideological balance remained the same - one conservative textualist replaced another. This latest nomination, however, would result in five justices who believe in textualism – i.e., that statutes and constitutional provisions mean what they say and should be interpreted accordingly. Gone would be Kennedy's watery jurisprudence, replaced by Kavanaugh's firm textualism that, in many cases, would take the Court out of the policy-making business.

That there is a deep pool of textualists for Trump to nominate is due in large part to the success JCN and its sister organization, the Federalist Society, have had in making textualism a viable alternative to the leftwing, results-oriented jurisprudence that had dominated the legal profession for over a century. As JCN panelist Gary Marx wryly put it, textualists can now be loud and proud about their "textual orientation."

Leftists understand what's at stake, which is why they are even more shrill than usual. Kavanaugh's confirmation will result in the "destruction of the Constitution," laments Sen. Kamala Harris (D.CA), and his supporters are "complicit” in “evil," insists Sen. Cory Booker (D.NJ).

During the JCN panel discussion, Marx described these absurdities as part of the Left’s strategy to run out the clock, and compared textualists’ efforts to those of the Allies in Dunkirk. The Royal Navy had only days to evacuate nearly 300,000 soldiers from certain defeat by the Germans. The Allies needed a miracle. And they got one – a miracle that saved the British Army from destruction on an obscure coast across the Channel and saved Britain from having to capitulate to Germany shortly thereafter.

Likewise, in October 2016, it would have seemed miraculous that Republicans in 2018 would be within striking distance of assembling a textualist majority on the Supreme Court. Hillary Clinton seemed certain of victory, and would have replaced Scalia with a younger version of Ruth Bader Ginsburg, thereby cementing a liberal majority on the Court for generations.

But despite Hillary's defeat two years ago, Republicans are still in a race against time. As the JCN panel made clear, the Left plans to obstruct Kavanaugh's confirmation hearings, then stall them past the November elections, at which point a blue wave would put the nomination in grave danger.

Left unsaid during the JCN panel discussion was another parallel between the Dunkirk and Kavanaugh's confirmation. Dunkirk was not the end of the war but rather the beginning of a long and arduous road to ultimate victory. Likewise, Kavanugh's confirmation would merely be the beginning of a long and arduous effort to transform the nation into the constitutional republic the Framers envisioned.

But, at the very least, the hope of that vision becoming a reality in our lifetimes has survived. For that, JCN and the Federalist Society deserve our deepest gratitude.