Monday

July 23rd, 2018

Insight

Filling the Swamp

Judge Andrew P. Napolitano

By Judge Andrew P. Napolitano

Published July 12,2018

Filling the Swamp

When Donald Trump started running for the Republican nomination for president in June 2015, he began by attacking the Republican establishment in Washington, and he began his attack by calling the establishment "the swamp."

His real target was the permanent government and its enablers in the legal, financial, diplomatic and intelligence communities in Washington. These entities hover around power centers no matter which party is in power.

Beneath the swamp, Trump argued, lies the deep state. This is a loose collection of career government officials who operate outside ordinary legal and constitutional frameworks and use the levers of government power to favor their own, affect public policy and stay in power. Though I did not vote for Trump — I voted for the Libertarian candidate — a part of me rejoiced at his election because I accepted his often repeated words that he would be a stumbling block to the deep state and he'd drain the swamp.

On Monday night, he rewarded the swamp denizens and deep state outliers by nominating one of their own to the Supreme Court.

Here is the back story.

The late Justice Antonin Scalia — my friend during the final 10 years of his life — and his neighbor and colleague Justice Anthony Kennedy often remarked to each other during the Obama years that each would like to leave the Supreme Court upon the election of a Republican president. Scalia's untimely death in February 2016 denied him that choice, but Kennedy bided his time.

When Trump was elected president, Kennedy told friends that he needed to await Trump's nominee to replace Scalia to gauge whether the judicially untested Trump could be counted upon to choose a nominee of Kennedy's liking and Scalia's standing.

Trump knew Kennedy's thinking, and that guided him in choosing Neil Gorsuch for Scalia's seat. Gorsuch believes in the primacy of the individual and natural rights and is generally skeptical of government regulators. He is also a former Kennedy clerk.

So the Gorsuch selection was intended to serve two purposes. The first was to pick a Scalia-like thinker for the court as candidate Trump had promised, and the second was to give Kennedy a comfort level so he could retire and give President Trump a second nominee. It worked.

When Kennedy paid an unprecedented visit to the Oval Office two weeks ago, ostensibly to tell the president of his intention to retire, he also had a secret purpose — to recommend his replacement. The announcement of Kennedy's departure began a firestorm of lobbying in behalf of four people from a list of 25 potential nominees that Trump had published when searching for Scalia's replacement.

The idea of a published list is novel. But it cemented loyalty from conservatives to Trump, who, of course, had no track record in evaluating or appointing judicial nominees. The standards used to put names on the list involved examining academic credentials and published works and, with the exception of one person, requiring judicial experience with a traditionalist bent, even if brief.

Social and religious conservatives pushed the president to nominate Judge Amy Coney Barrett, a fiercely Catholic mother of seven and former Notre Dame Law School professor who is a known opponent of abortion. Intellectual conservatives pushed for Judge Raymond Kethledge, a philosopher like Justice Gorsuch who believes in the primacy of the individual and who recognizes natural rights. The president's sister Judge Maryanne Trump Barry had her brother convinced that her colleague Judge Thomas Hardiman, a blue-collar diamond-in-the-rough conservative, would fulfill his promise to his base.

But at the last minute, a gaggle of Washington lawyers and lobbyists — called the establishment when you agree with them and the swamp when you don't — persuaded the president to reject his commitment to his sister and nominate Judge Brett Kavanaugh. He is the man Justice Kennedy had asked the president to nominate and is another former Kennedy clerk.

The suspense over all this was palpable earlier this week. The showman in the president beat a drum so effectively last weekend that we all watched with excited pulse rates on Monday night. I was and remain extremely disappointed. Donald Trump — whatever you think of him as a president — has been utterly faithful to his campaign promises in foreign and domestic policy. Until now.

Now he has given us a nominee to the highest court in the land who typifies the culture he railed against when he claimed he'd drain the swamp. This man and this culture accept cutting holes in the Fourth Amendment because they don't believe that it should protect privacy. This man and this culture accept unlimited spying on innocent Americans by the National Security Agency because they don't believe that the NSA is subject to the Constitution.

This man and this culture even looked the other way in the face of deep state shenanigans against President Trump himself. This man and this culture accept the federal regulation of health care and its command that everyone buy health insurance, called Obamacare. This man and this culture embrace the Nixonian mantra that if the president does it, it is not illegal.

What happened here?

The Kavanaugh nomination is not a question of his qualifications; it is a question of his values. It is dangerous for judges to embrace values that diminish personal freedom rather than expand it. When they do that, they reveal their view that freedom comes from the government, not from within us. Thomas Jefferson and all the Founding Fathers profoundly rejected the government-as-source-of-freedom argument, but Judge Kavanaugh accepts it.

Jefferson once remarked that unless you pick someone's pocket or break someone's leg, no one should care how you exercise your freedom or pursue happiness. I wish the president had nominated a person who believes that, as well. But he didn't.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

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