As Erick has already noted, Donald Trump has finally released his list of names from which he claims he would select Antonin Scalia’s replacement.
The list is objectively a good one. As my friend Josh Blackman notes, these are serious originalists—jurists who are deeply committed to applying the Constitution’s original meaning. Of the federal appellate judges, Diane Sykes and William Pryor—the two names Trump had previously explicitly floated—are absolutely rock-ribbed stalwarts in the legal conservative world. Steven Colloton is also nothing if not solid. Of the state court judges, Thomas Lee—the older brother of Senator Mike Lee—and David Stras are both wonderfully incisive legal minds and, furthermore, are genuinely good men. Allison Eid is another great pick, and Don Willett, while known for his “Tweeter Laureate of Texas” bona fides, is also a deeply principled judge who has oftentimes been willing to buck (arguably) sclerotic orthodoxies and rethink some fundamental legal conservative first principles. And finally, the balance of both federal and state court judge names is intellectually refreshing; not since Ronald Reagan tapped Sandra Day O’Connor has a state court judge skyrocketed straight to SCOTUS.
In short, whoever actually prepared this list should be applauded. I am sure that the Federalist Society and/or the Heritage Foundation played a significant role.
On the Sunday talk shows last week, Trump apologists like Reince Priebus and Newt Gingrich repeatedly invoked SCOTUS as a top reason to vote for the orange-hued clown. “Vote Trump or risk losing the Court for a generation,” so goes the fear-mongering. It is, indeed, a smart tactic for the Trumpkin cultists and their kowtowing sycophants: back before I became #NeverTrump, I cited Scalia’s sudden death and the possibility of losing the Court as the sole reason why I would back the bloviating charlatan were he to emerge as the nominee. I even specifically mentioned that Trump had mentioned the names of both Diane Sykes and William Pryor, each of whom made the final list today.
That the “alt-right” dear leader has finally produced such a quality list will inevitably become a pressure point for many in the #NeverTrump camp. It should not be. While the orange-hued clown’s list is objectively good, it is also objectively irrelevant. Here is why.
Donald Trump is a Pathological Liar – As Erick noted, Donald Trump’s word means absolutely nothing. This is a man who forged his medical records to dodge the draft for Vietnam. This is a man who claims that he was not self-absorbed enough to fake a role as his own P.R. man (“John Miller“) despite the fact that he had previously literally admitted it back in the 1990s. This is a man who took five different stances on abortion in the course of three days, back in late March. This is a man who constantly had his campaign “correct” him when he went off-script in a debate—including when he flipped, flopped, and then flipped back again on H-1B visas. This is a man who now tells us that all of his grand policy ideas are mere “suggestions,” lest you actually take him at his word that any of the clown show is for real. This is a man who has already backtracked, since clinching the nomination, on both taxes and the minimum wage. This is a man who literally accused Ted Cruz’s father of being complicit in the JFK assassination, and then the next day said he did no such thing. Donald Trump could not tell the truth, the whole truth, and nothing but the truth, so help him God, if his life depended on it. Here is John Yoo’s take:
I am thrilled by this list. But that being said, I cannot trust Trump to keep his word. He has already flip-flopped on so many issues, before, during, and after the primary campaign. How do we know he would not start wheeling and dealing on judicial appointments if he were to win the Oval Office?
Donald Trump is an Existential Threat to American Governance – I wrote about this back in early March, when I described him as the very demagogue the Founders feared:
Donald Trump never talks about disagreeing with Barack Obama’s unilateral lawlessness in terms of presidential humility; rather, he only disparages some of Obama’s actions on policy grounds. He apparently thinks that judges sign bills, thus rendering his pathetic knowledge of governance sub-Schoolhouse Rock! level. He lambasts the landmark pro-First Amendment decision of Citizens United v. F.E.C., and talks about the need to ‘open up‘ our libel laws. He never, ever talks about the moral imperatives of constitutionally limited government—about the notion, once advanced by old Republican Senators Elihu Root of New York and Henry Cabot Lodge of Massachusetts, that the Declaration’s Lockean-based natural rights proclamations and the Constitution’s structural safeguards against political actors’ raw ambitions are inextricable ‘to the end that individual liberty might be preserved.’
The reality is that this man is extremely dangerous. There is a serious moral cost to supporting such a bad actor—someone so temperamentally flawed, probably psychologically disordered, and so manifestly unfit for the high office he seeks.
Donald Trump is Not Even Close to a Conservative – This point has been made many times before, and I do not need to rehash it here. (If you need a refresher, see my penultimate paragraph from this post, back in late February.) The point here is that, for someone so transparently lacking in conservative first principles, there is simply no reason to trust his ostensible convictions (or lack thereof) on judicial nominees as being anything other than a risible ruse. Do we think Donald Trump actually cares about the Constitution? The same guy who has praised the horrendous Kelo v. New London decision on eminent domain and who has previously said his pro-partial birth abortion sister would make for a “phenomenal” SCOTUS justice? The same guy who legitimately said judges sign bills (that point cannot be made frequently enough) and whose strongman overtones would, as Ross Douthat wrote, “test [our sclerotic institutions] as no modern president has tested them before—and with them, the health of our economy, the civil peace of our society and the stability of an increasingly perilous world?” Of course not. Which brings me to…
Donald Trump Would Never Exercise Any Political Capital on a Judicial Nomination Fight – If you are not a conservative, then it is fairly straightforward that you would not actually care about expending precious political capital to nominate principled conservative jurists to the federal courts. But it is actually even simpler than that. Donald Trump, constitutional ignoramus writ large, only cares about doing what is best for Donald Trump. He only cares about aggrandizing power for himself. In the context of judicial nominations, that would mean not appointing pro-separation of powers stalwarts who would serve as a meaningful check on his would-be despotic agenda. It means a firm proclivity toward nominating blind “yes-men.” As George Washington University Law School’s Orin Kerr told The Weekly Standard:
When Trump realizes that judges can block a President’s actions, but that he gets to nominate judges, he’ll put two and two together. He’ll nominate cronies who would rubber-stamp whatever Trump does. That’s not a conservative position or a liberal position. It’s just a pro-Trump position. If Trump has a choice between an originalist conservative with sterling credentials who would often block Trump, and [a] buddy of his who hasn’t read the Constitution but would let Trump do what he wants, who do you think Trump would pick?
If Donald Trump were to successfully dupe enough conservatives and win this November, all it would take is one earnest conversation—wherein he would actually realize that the role of the counter-majoritarian judiciary is to check the excesses of the two political branches—in order to convince Trump to abort his SCOTUS list and go with a meek crony. The orange-hued clown loves talking about making “deals,” too; so how about he nominates a milquetoast centrist in exchange for pulling out of NATO? How about that “deal,” Chuck Schumer?
Donald Trump Hijacking the GOP is Still Terrible for Conservatism, Long-Term – This point has also been made elsewhere, at length. To the extent that “alt-right” Trumpism emerges as the ideological standard-bearer for the American Right instead of traditional conservatism, our long-term goals are not just diminished—we would literally be finished as a movement. And even if Trumpism comes to dominate the GOP as a partisan vehicle, well, suffice it to say that building legitimately competitive third parties from scratch is no easy task. The upshot is that if conservatism loses out long-term with Trump as the GOP standard-bearer (which I believe it would), then voters will increasingly identify the GOP with Trump and his ilk, all of which would be to the detriment of many of the causes—such as abortion—near and dear to so many of those who would elevate judicial nominations to a place of such high national importance in the first place. The long game here matters. Most pro-life advances are happening nowadays at the state level, anyway, where down-ballot conservatism might be threatened even more than at the federal level in a world where Trump encapsulates the Republican Party brand.
Trump is Only Likely to Flip the Court if he Nominates Two Conservatives – An eloquent conservative friend of mine made this point exceptionally well in a Facebook post. I will quote him here:
I see several problems with this meme going around saying the next president will likely make a 7-2 majority. First, it’s at least reasonable to limit the scenario to four years. Clinton and Trump are remarkably unpopular, and the chances of either one facing a stronger challenger in 2020 seem pretty significant. Second, the loyalties of the retiring justices matter. Opposition to an Obama appointment isn’t as strong as it was, but we’ll start by assuming Scalia’s spot stays open. Chances are that Justice Ginsburg (83) has to retire regardless of the president. However, having an opposite-party president discourages decisions to retire, so it might be reasonable to expect either Justices Breyer (77) or Kennedy (79) to stay, depending on who’s in the Oval Office. Justices Thomas (67), Alito (66), and younger justices will likely stay regardless. So that’s probably three vacancies (leaving two liberals, four conservatives) for a Democrat, or three vacancies (leaving three liberals, three conservatives) for a Republican. If Obama fills Scalia’s seat with a liberal, it’s three vacancies either way, and the president gets to decide if it’s a 5-4 conservative or liberal court (if the Senate goes along). In either case—two vacancies or three—Trump only flips the court if he appoints two conservatives.
Suffice it to say that trusting Trump to nominate two solid conservatives would be taking a tremendous leap of faith. One might even call it a “yuge” leap of faith. And this leap of faith, moreover, represents the only reason to even consider abandoning #NeverTrump. Not worth it, folks.
So there you have it. Stop trying to fear-monger #NeverTrump with talks of SCOTUS, personality cultists and Trumpkin apologists. No matter how good your list is, it is not going to work.