Jeb Bush Campaign Press Release - Realigning the Courts with the Constitution

The next presidential election will help to determine whether we move further away from constitutional government, or make a critical course correction. Most Supreme Court watchers agree that the next president will significantly influence the court's course for at least the next decade, maybe longer. With vacancies possible across the Supreme Court's ideological spectrum, and in the lower federal courts as well, the stakes are high. Nothing less than preserving the form of government our Founders gave us—with limited powers, and accountability to the people—is at stake.

My Commitment

As president I will take an oath to "preserve, protect, and defend the Constitution of the United States." Appointing judges who believe in the rule of law is a vitally important part of that job, and one that I intend to do to the utmost of my ability.

Too often the Supreme Court has, in effect, rewritten the Constitution. Sometimes it has invented rights that are not found in the Constitution and used them to strike down legitimate laws with which five Justices disagree. At other times it has failed to enforce parts of the Constitution. When it does either of these things, the Court erodes our system of government and short-circuits the democratic process

Our Founders gave us a limited government and divided its powers to protect liberty and accountability. They also gave us an amendment process to change the Constitution when needed. But because too many justices have viewed the Court as a kind of permanent constitutional convention, we have drifted far away from these wise arrangements.

If the Court goes the wrong way, we face a troubling future. Our strong tradition of religious liberty, which is already under assault, could erode precipitously. The right to bear arms could be read out of our Constitution. School-choice programs that have given hope to children all over our country could be ended by judicial fiat. The states could be reduced to mere administrative sub-units of the federal government. Liberal dogma could be placed in the way of reasonable protections for unborn children, even when most people agree on them.

I will do everything in my power to avert that fate. In my view, the federal courts have a vital but limited role in our national life. Their job is not to second-guess laws or to substitute their own judgment for the provisions of the Constitution. It is to apply the laws as written, and follow the Constitution above all. Because many cases present genuinely difficult questions, judges who share these convictions will not always agree with one another on how to apply the law in particular cases. But they will look to the text, original understanding, history, and structure of the Constitution for their answers—not to their own views about which public policies would be better, not to their sense of the zeitgeist, and not to what might win favor on editorial pages. They will defer to the elected branches on issues the Constitution leaves to them to resolve. But when laws conflict with the Constitution, they will not hesitate to strike them down.

As president, I will search for nominees who agree with this job description—nominees in the mold of such Justices as Samuel Alito, Antonin Scalia, and Clarence Thomas—and I will fight for their confirmation.

We should not have any illusions about this fact: It will be a fight. Long gone are the days when we could count on Senate Democrats to accept conservative nominees who are well-qualified and have records that testify to their character and integrity. These days, their desire to have courts that will impose the liberal agenda they favor trumps such old-fashioned notions. A nominee with a record of applying the law as written—the kind of nominee I will select—is guaranteed to draw opposition from them, whether that nomination is for the Supreme Court or a lower appellate court. I am eager to have that debate when I am president, and I am confident that those of us who believe in judicial fidelity to the Constitution will win it.

My Record

For months now, I have been telling voters across the country that, as president, I would welcome the opportunity to nominate and fight for judges who will enforce the Constitution as an enduring document, not as a living document that constantly changes to accord with liberal fashions. Voters need not take my word for it, however. They can simply look to my record as a two-term governor of Florida.

As governor, judicial appointments were one of my top priorities. When I took office, Florida's judicial selection process was subject to excessive influence by special interests. Together with the Florida legislature, I created a new process better geared toward filling the state courts with jurists who had a sound understanding of their limited, but important, role.

My administration devoted substantial time to the vetting process and made appointments with the utmost care. I detailed publicly the criteria I would use to select people for the bench: humility, courage, an appreciation of the duties of a judge, a respect for the will of the people, and devotion to full application of the law without equivocation. And then I scoured Florida for people who met that test. While the reforms did not give governors a free hand in appointing judges, I was able to make a dramatic change for the better in the state's courts.

My two appointments to the Florida Supreme Court, Raul Cantero and Kenneth Bell, are strong examples of my philosophy of judicial appointments in action. Both Justice Cantero and Justice Bell have earned reputations as the Florida Supreme Court's most consistent conservatives. I also looked to the future with my appointments: Two of the appellate judges I named, Charles Canady and Ricky Polston, are now serving with distinction on the Florida Supreme Court.

I would approach nominations to the federal courts and the U.S. Supreme Court with the same rigor and care as I approached appointments to the Florida Supreme Court. My strategy:

• Assemble the broadest possible pool of candidates who meet the core qualifications.
• Scour their records and vet their references.
• Keep on the list only those people with a proven history of respecting both the limits of federal power and the will of the people.
• Identify those most willing to stand up for the law, even if it runs contrary to their own policy preferences.
• And fight to confirm the most qualified candidates who meet those criteria.

The federal courts are at a crossroads. I want to ensure they go down the right path. We cannot afford to elect a president who will pack the courts with politicians in robes willing to subvert the legal process to advance their political agendas. We need a president who is committed to nominating people who clearly understand the difference between judges and legislators, and who have demonstrated records of respecting the Constitution's limits on federal authority. That is what I am committed to doing, that is the record I built in Florida, and that is how we will ensure that our courts are realigned with the Constitution.

Notable Public Statements on Judicial Nominations

Liberty University Speech:

• Judges must not "mistak[e] themselves for elected legislators and impos[e] restrictions and rights that do not exist in the Constitution." (Breitbart 5/10/15)

Open Letter to Florida Bar Outlining Philosophy:

• "All else being equal, I will appoint judges whom I believe share such values as a belief in judicial restraint, limited government, a respect for the will of the people, and devotion to the full application of the criminal law without equivocation." (Florida Bar News 11/1/99)

Statement on Appointment of Raoul Cantero to Florida Supreme Court:

• "Increasingly, courts have seized control over policy decisions that are not theirs to make. I'd prefer that judges distinguish themselves by their adherence to the fundamental principle of the separation of powers. I do not know of any Americans or Floridians who have consented to government by judiciary." (Statement of Governor Bush re appointment of Raoul Cantero to Florida Supreme Court 7/10/02)
• "The increasing power of courts…should not come at the expense of institutions that have a more legitimate claim to govern our lives. As the courts grow ever more powerful, there is an even greater need for judges who are humble about the judicial role. Humble in the sense that they know courts are not mini-legislatures or governors." (Statement of Governor Bush re appointment of Raoul Cantero to Florida Supreme Court 7/10/02)
• "Courts exist to protect freedom. This includes the individual rights that each of us holds dear. But freedom also means the shared right of the people to govern themselves through their elected representatives in the Legislature and the Executive Branch. A healthy respect for the people's right of self-government, and a strong dose of humility, are absolute prerequisites for a good judge." (Statement of Governor Bush re appointment of Raoul Cantero to Florida Supreme Court 7/10/02)

Courts as Protection for Individual Rights:

• "Judges have a really difficult job. They must balance judicial independence, which is a guiding principle for democracy, with a respect for the primacy of the legislative and executive branches as policymakers. They must guard our individual rights . . . but not at the expense of our collective right to self-government. And perhaps their greatest challenge is to resist the urge to substitute their own values and policy preferences for those embodied in the law." (Florida Bar News 1/15/03)

One of the most important responsibilities of the judiciary is to safeguard the individual rights that the people have enshrined in our Constitution. But that is precisely the point: a judge must enforce the Constitution that the people have actually adopted, not the Constitution that the judge wishes the people had adopted. It is only through faithful adherence to this principle that courts can respect both individual rights and the people's collective right to self-government. Problems arise when courts attempt to impose their personal values and policy preferences on the rest of us. This is the very definition of judicial arrogance. In all my judicial appointments, I have sought men and women with the humility and intellectual integrity to subordinate their own will to the rule of law.

Jeb Bush
January 12, 2003