It is relatively easy to see how well-intentioned Republicans who may not like Donald Trump could still be convinced to support him. Chief among those reasons is that our next president will likely have the opportunity to appoint one or more Supreme Court justices.
For months now, both the hardcore and reluctant Trump supporters alike have tried to shame and/or scare us #NeverTrump conservatives into backing Trump by claiming that if we don’t vote for him, Hillary will pack the court with liberals, and it’ll be lost for generations. Over and over Trump’s supporters have assured us that he can be trusted to appoint conservatives justices and save the court.
While it’s true that Hillary would surely nominate liberal justices if given the opportunity, the claim that Trump would fight against liberals in Congress to nominate conservative justices simply flies in the face of everything we know about Trump.
To consider such an argument would mean first ignoring all the overwhelming evidence that Trump is going to lose in an historic landslide to Clinton. But, for the sake of argument, let’s assume he does take office despite the chances being so low.
I still think there are a number of factors that suggest that Trump would/could never save the Supreme Court —
1) Trump Cannot Be Trusted to Appoint Conservative Justices
Yes, Trump did release a list of prospective jurists he would select from. On the day he released the list, he suggested the list was only a “guide,” writing, “The following list of potential Supreme Court justices is representative of the kind of constitutional principles I value and, as President, I plan to use this list as a guide to nominate our next United States Supreme Court Justices.” (emphasis added)
Please note that Trump doesn’t keep his word on anything … we can ask the banks he refused to pay back loans to when his businesses went bankrupt, or the workers he stiffed at those same businesses by refusing to pay overtime to or, in some cases, refused to even pay at all.
Trump has lied or flip-flopped about literally everything during the course of this primary. He lied about whether he ever acted as his own spokesman. He lied about whether he opposed the Iraq war before it started. He lied about his involvement in the Iran prisoner release. He flip flopped about his unequivocal promise to release his taxes before the election. Literally the day after becoming the presumptive nominee, he flip flopped on the minimum wage. He flip flopped on his own tax plan. In a closed door session with the New York Times, he flip flopped on his signature promise, which is to build a wall. He flip flopped on the pledge to support the Republican nominee. His own campaign people have overtly said that everything Trump says is just a “suggestion” or an opening bargaining position with Democrats.
We are just supposed to accept on his word that this list is an iron-clad promise and not just a “suggestion” or an “opening bargaining position”, and that he won’t end up nominating another Souter? His word is quite suspect at best, and yet that’s literally all we have when it comes to his promise about appointing good judges.
2) Trump is not a Conservative
First, Trump hasn’t fought for a single conservative principle, policy, or person his entire life, and why would we think he will start now at age seventy? At that age, a person’s true character is pretty well set. Either your life experiences have humbled and changed you, or they haven’t.
Trump has been a liberal over the course of his entire professional, personal, and political life. He has been (until very recently … like just before running as a Republican candidate … Hmmm) strongly pro abortion, pro gun control, pro planned parenthood, pro amnesty, pro prosecution of news agencies and opponents, pro crony capitalism, pro buying of politicians, pro eminent domain, pro foreign labor, pro foreign manufacturing, pro big business bailouts, pro men in women’s restrooms, pro gay marriage, pro nationalized healthcare, pro nationalized public education, pro nationalized housing. As he himself has boldly stated, “This is called the Republican Party, it’s not called the Conservative Party.”
Trump keeps citing the Supreme Court as reason enough for conservatives to vote for him. “If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway. You know why? Supreme Court judges, Supreme Court judges,” Trump told a rally in Cedar Rapids, Iowa. Except that Trump doesn’t care about the Supreme Court in the slightest.
He certainly doesn’t understand the Constitution. When asked how he would choose a Supreme Court justice he said, “Well, I’d probably appoint people that would look very seriously at [Clinton’s] email disaster because it’s a criminal activity, and I would appoint people that would look very seriously at that to start off with,” Trump said in a phone interview with ABC’s “Good Morning America.” So, Trump apparently thinks that Supreme Court justices sign bills and investigate scandals. He obviously does not understand the difference between the judicial, executive, and legislative branches.
Nor does he really care about the Constitution, either.
Obvious (to everyone but Trump) is the simple fact that Republicans must remain in control of the Senate for even the remote possibility of a conservative nomination succeeding. But he has said he really doesn’t care if Republicans hold the Senate or not. When asked whether the party’s maintaining its majority in the Senate means anything to him, Trump replied, “Well, I’d like them to do that. But I don’t mind being a free agent, either.”
But there are other signs Trump is not a true friend of the Constitution. First, Trump is an ardent opponent of the First Amendment. “One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected,” Trump said at a rally in February, 2016.
And, recently …
Umm … yes, actually, it really is. Because of the First amendment, judges are not allowed to determine the truth or falsity of any claims or statements made in a political context. This is for the voters to decide.
Trump is not a fan of the Second Amendment, either. During the GOP presidential debates, and on the campaign trail, Trump attempted to portray himself as a defender of the Second Amendment … but the reality says something quite different.
In his 2000 book, America We Deserve, Trump actually chastised the Republican Party for not embracing stricter restrictions on gun rights. “The Republicans walk the NRA line and refuse even limited restrictions,” he wrote. “I support the ban on assault weapons and I also support a slightly longer waiting period to purchase a gun.”
Nor is Trump a fan of the Fifth amendment, considering his ardent support of eminent domain. Last year, Trump told Fox News that he totally supports the Supreme Court’s 2005 eminent domain decision in Kelo v. City of New London. “I think eminent domain is wonderful,” Trump declared.
That, in and of itself, should not surprise anyone. After all, he has a long history of seeking to profit from eminent domain abuse. An infamous example occurred in 1994 when Trump joined forces with government officials in New Jersey attempting (unsuccessfully, thankfully) to kick an elderly widow out of her Atlantic City home in order to make room for extra limousine parking at the nearby Trump Plaza hotel and casino.
3) Trump Doesn’t Really Want Constitutional Originalists on the Court
What makes us think that a President Trump would appoint a justice who would stand up to him? That’s just not the type of person he is.
A primary duty of the Supreme Court is to overturn unconstitutional acts, both those of an overreaching Congress and an president. Trump would not likely nominate justices who would restrict his power to its constitutionally limited bounds. Given 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? That’s neither a conservative position or a liberal position. But it is a pro-Trump position.
A true originalist justice (like a Thomas or Alito) would be sure to block any attempts of executive overreach, and Trump’s “bigly” ego could definitely not handle that. If he has the political power to nominate a justice who will act as a rubber stamp for his big government, isolationist, nationalist agenda, why wouldn’t he?
No, the most important question that a President Trump would likely ask of any judicial nominee would be, “what would you vote to prevent me from doing?” and the candidate who has the shortest list probably gets the nod going in.
Trump only cares about himself, not ideas and policies that conservatives have fought for for decades. And this tells me that he would actually appoint a judge who WASN’T an originalist, because only that kind of judge would be willing to allow him to pass his executive orders.
4) Republicans Will Never Use The “Nuclear Option”
Even Trump were to squeak out a win in November, Republicans will probably have nowhere near a filibuster-proof majority. And we can be sure the Democrats will filibuster any conservative justice Trump might nominate. And do we really think we can rely on the courage and intestinal fortitude of Mitch McConnell to stop the Democrats by invoking the nuclear option? The same McConnell who has cut repeated deals with President Obama, including the Iran deal, despite calls for him to do so. Does anyone really believe that Mitch McConnell would somehow stand stronger against a President Trump? And, after a certain Democratic filibuster, Trump would certainly come back with a “highly qualified” nominee (i.e., someone able to garner 70 votes from both parties) and declare himself a “winner”. This puts Trump supporters in the unenviable position of trying to argue that the same McConnell who folded repeatedly to Obama would stand up to Trump. I don’t think so!
5) Even Conservative Presidents Have Made Bad Supreme Court Appointments
It is foolhardy to base your vote for president on a set of probabilities that have nothing to do with the actual candidate you’re voting for. Remember that pro-life President Ronald Reagan put Anthony Kennedy on the Supreme Court … who has been anything but a strong pro-life justice. Pro-life President George H.W. Bush put David Souter on the Supreme Court … who was more even liberal than Kennedy. Yes, pro-life George W. Bush did add Sam Alito and John Roberts to the court … arguably two of the most pro-life justices to have ever served on the court. But they have been unable to end abortion. And thanks to Justice Roberts, Obamacare is the law of the land and has been used as an instrument to advance the abortion agenda.
6) Liberal Justices Would Be Reluctant to Step Down If Trump is Elected
Consider this: The 3 oldest justices are Ginsburg (age 83), Kennedy (age 80), and Breyer (age 78) … all liberals. If Trump was to be elected president, why would they retire … knowing that it would make it possible for him to replace them with a conservative? Wouldn’t they, instead, try to wait out another four years for him to lose and let his successor replace them with liberals?
No, I am not looking forward to the “progressive” justices that a President Clinton would put forward. But I am also far from convinced a President Trump would be the long-awaited savior of the Supreme Court, either.