If there is any good to come out of the Whole Woman’s Health case, it is the clarion call to conservatives and moderates everywhere that elections matter. The power of the presidency is amplified by the president’s ability to nominate Supreme Court Justices and other judges and, with the consent of the Senate, place them on the bench.
Securing life-time positions for justices and judges — especially in an era where the Court decides social and political issues that affect hundreds of millions of people — is likely the largest and longest-lasting stamp a president can put on the nation. How each presidential candidate will affect the make-up of the Supreme Court and the judiciary as a whole must be a critical factor for voters.
After the debacle of Whole Woman’s Health, anyone who takes the Constitution and rule of law seriously must make priority number one the election of the GOP nominee and the retention of a GOP majority in the U.S. Senate. Three justices out of the five-justice Whole Woman’s Health majority are over 75 years of age and likely to be replaced by the next president.
A GOP President with a GOP Senate is our best chance of getting justices whose reverence for the actual written Constitution, the rule of law, separation of powers and federalism would lead them to correct the lawlessness of this decision, and any others, potentially turning a 5-3 loss into a 7-2 win in favor of women’s health, the Constitution and rule of law. Donald Trump has been clear and transparent on this issue, providing a list of potential nominees aptly described by Utah Senator Mike Lee, a leading voice for constitutional conservatism, as “the best, most conservative Supreme Court list I have ever seen from any President.”
In contrast, there is no reason to think Hillary Clinton would be anything other than a third term of Barack Obama. Her nominations would solidify the Whole Woman’s Health majority and the type of legal thinking it represents for decades. Consider the consequences: even the small ways in which the Court has pulled back on the vast overreach of this administration would be lost. In U.S. v Texas, where the Court split in a 4-4 tie and thus affirmed the ruling of the Fifth Circuit enjoining President Obama’s unilateral immigration scheme, would likely have come out the other way.
Similarly in Michigan v. EPA, where the Court in a 5-4 decision concluded that the EPA at least had to consider costs before imposing an intrusive and broad environmental rule, would likely not survive. The Court’s 5-4 stay of the illegal, so-called Clean Power Plan would also face a similar fate. These are important victories for the rule of law that would be put at grave risk by not supporting the Republican nominee, thus letting Hillary Clinton walk away with not only control of the executive branch, but also installing a multi-generational liberal bench.
I call on Republicans to unite behind Mr. Trump. I know many in our big tent supported others in the primary, and some still have reservations, but generations’ worth of control of the Supreme Court hang in the balance. The stark question is whether we continue to build on the rebirth of constitutionalism ushered in by justices appointed by the last three Republican Presidents, or we fall back into the politics-by-another-name style of judging by the Warren Court. As someone who relies on the judiciary to vindicate the rights of my State and its citizens, this is an easy question. We need — now more than ever — a Court that abides by the rule of law and ensures the other branches do as well.
Leslie Rutledge is the 56th Attorney General of Arkansas. Elected on Nov. 4, 2014, she is the first woman and first Republican in Arkansas history to be elected to the office.