Antonin Scalia’s death reignited a long-running battle over the Supreme Court. Trump’s victory escalated it. Now unexpectedly on defense, Democrats are demanding any Trump nominee be what they consider “mainstream.”
Incoming Senate Minority Leader Charles Schumer has long led the mainstream mendacity. In 2007, he said any Bush nominee “must prove … they are in the mainstream rather than we have to prove that they are not.” Subsequent Democratic nominees, however, were simply defined as mainstream. Now he has switched course again, preemptively asserting any Trump nominee who fails to get Schumer’s imprimatur as mainstream could even merit consideration.
Why the mainstream rhetoric? To be in the mainstream sounds good; to be out of it sounds bad. But it rests on a distorting analogy.
The analogy equates mainstream to “normal” or current majority views, which are then further equated to “correct” views. But in choosing justices, whose primary role is preserving the Constitution against majority abuses, that equation fails. To recognize that, one need only remember the political choices the Constitution stringently restricted (particularly changing the Constitution), and the Bill of Rights put off-limits, to defend liberty against government encroachment.
Further, where the mainstream is — and how far from its supposed center one might be — are indefinable. That makes the core issue where the mainstream should be, not whether one is in the current mainstream.
That is, the mainstream may be in the wrong place. It has clearly changed in America, but only because some were out of the previous mainstream. Men being created equal, with unalienable rights against government abuse, is far from the once mainstream belief in the divine right of kings. And our Bill of Rights freedoms to speak, write, and worship as we choose, and to have our property protected from government predation, were not always mainstream.
Federalist 78, America’s most famous statement of the judiciary’s role, reveals that the political mainstream has indeed jumped its constitutionally enumerated banks, arguing for re-routing it toward its original course: “A limited Constitution ... can be preserved in practice no other way than through … courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” Further, “whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter ... to guard the Constitution and the rights of individuals.”
If the mainstream has moved from its original American course, only those now out of it can shift it back. For example, the now-common view that using government to rob Peter to pay Paul is an well within the mainstream. Anyone who opposes this idea tends to fall outside the mainstream.
In fact, only “out of the mainstream” nominees could resist further expanding government encroachments or even reclaim eviscerated freedoms once taken for granted. Mainstream nominees, in contrast, promise to follow the current path with “new and improved” encroachments.
Gary M. Galles is a professor of economics at Pepperdine University. He is the author of The Apostle of Peace: The Radical Mind of Leonard Read.
