Donald Trump won Florida and the presidency because he focused on issues that resound with everyday voters. Like the judiciary. The death of Justice Antonin Scalia opened a national dialogue on the Supreme Court, and Trump did a cannonball into the conversation pool. He committed to working with the Federalist Society, promised to appoint originalists to the bench, and issued lists of possible nominees.
No other candidate talked like Trump about the judiciary. Everyday voters, and especially everyday conservatives, followed with glee. Many voted for him based on this single issue. Even Never Trumpers acknowledged that Trump’s position was correct—they could only question whether he would keep his word.
But wait. It’s not as if many everyday voters know what the Federalist Society is or what strict construction looks like. Few could name the most controversial constitutional provisions, and hardly anyone could pick an originalist out of a lineup of constitutional experts, not if a thousand dinners with Clarence Thomas were offered as a prize.
Such details captivate politically savvy court watchers. Everyday voters are busy minding themselves. Their lives rarely have anything to do with politics and courts.
So why would everyday voters and everyday conservatives in particular care about Trump’s judicial selections? They care about the nation’s direction. They care because they’ve seen that, for decades, progressives have used the judiciary to advance a social agenda by turning evolving policy goals into constitutional rights that cannot be supported by reading the document’s language, even if you take the time to understand what it was intended to mean.
In many cases, the results have been achievements that progressives could not have obtained through the ballot box. In all cases, the results are far better than mere legislative victories: legislation can be overruled by new legislation, but constitutions are the supreme law of the land. If a handful of unelected judges agree that something is an inalienable constitutional right, then voters and the officials they elect can do nothing about it, short of a constitutional amendment.
This pattern is not hard to follow. Over time, it’s obvious. Even if you support some of the results, it is easy to understand that redefining constitutional or even statutory terms to embody the day’s social norms is not a proper use of judicial authority. Change in the law is inevitable, but it should come through those elected to make law, not those whose job it is to apply the law when resolving disputes.
So Trump struck a chord that resonated across the conservative universe, and beyond, when he zeroed in on a solution. He promised to appoint federal judges, including supreme court justices, who would not legislate from the bench but simply follow the law. His judges would interpret the Constitution to mean what its words were intended to mean, leaving the rest to be addressed by the people through their elected representatives, whether Congress or state leaders.
The shorthand for the originalist push has become a reference to judges who support the Constitution, meaning judges who accept that it is not their role to rewrite that document or any other law. Their role is to follow the law and let others agonize over changing it.
Opposing forces recently struck a very different chord with their venomous efforts to oppose Justice Kavanaugh’s appointment. Savvy observers knew the game immediately, but the disgusting clamor eventually helped many everyday voters, and especially conservatives, catch on. The louder the chants in opposition, the more likely the emotional weaponry was pretext. Something else was afoot. Kavanaugh was opposed because he is what Trump said he wanted: a judge who will apply the law and not rewrite it based on some notion of social progress. For a position with a lifetime tenure, that is dangerously in conflict with progressive interests.
For conservative candidates facing election, clear lessons emerge. Everyday voters and especially conservatives care about the courts. They care that the courts are filled with judges who lack an agenda, who will apply the law and not reinvent it, who will let elected representatives decide when and how the law should be changed.
These voters will turn out when they learn that a particular election can affect judicial appointments. They just need to hear it.
The message should be loud and clear: if you want judges who will follow the law, if you want judges who will not rewrite the law, then keep the Senate in the hands of those who support the President. Keep the governor’s seat occupied by someone who supports the Constitution. It’s not just a federal issue, it’s a state issue too.
So as we proceed to the coming elections, remember the Constitution. Remember the courts. Tell voters how their votes will affect who gets appointed. Remind them why that is important.
Voters will respond, especially conservative voters. To paraphrase that 1990s wisdom, it’s the judges, stupid.