Law & the Courts

Trump Has Given Conservatives Little Comfort on SCOTUS Vacancy

(Nick Cannella/Dreamstime)

Back on March 21, Donald Trump, sensing there was some conservative anxiety about whom he would nominate to the Supreme Court, promise to compile and release a list of five to ten “great conservative judges” with “great intellects.”

“I will guarantee that those are going to be the first judges that I put up for nomination if I win,” Trump said. “And that should solve that problem.”

It’s mid-May now, Senate Republicans are holding the line against hearings or a confirmation vote on President Obama’s nominee, Merrick Garland, and there remains no sign that a list of potential Trump nominees is forthcoming.

Trump’s handling of the Supreme Court question is worrisome on three fronts.

First, there is the simple failure to deliver on a public promise. It’s been almost two months since he offered to produce his list of potential nominees, and there’s still no sign of it. If experience tells us anything, it’s that the list may never come. He’s made an entire campaign out of lying, flip-flopping, and even adopting contradictory positions simultaneously. Everything that comes out of his mouth is, as he’s so fond of putting it, “negotiable,” and there’s no reason to believe the promised Supreme Court shortlist is an exception.

RELATED: Where’s Trump’s Judge List?

Second, he gives little indication he’s spent more than a few minutes thinking about who would make a good pick for the Court, or about the role of the judiciary in our government. In late March, he suggested that one of his key criteria for a nominee would be how harshly they viewed Hillary Clinton’s e-mail scandal:

“I’d probably appoint people that would look very seriously at her e-mail 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. “What she’s getting away with is absolutely murder. You talk about a case — now that’s a real case.”

#share#But the Supreme Court rarely makes direct determinations of guilt or innocence in criminal matters; it considers whether a law or government action violates the Constitution. In other words, if the Department of Justice decides to prosecute Clinton for breaking U.S. laws in her handling of classified material, the case will be heard in a criminal court, not the high court. Trump appears not to understand the basic structure of our legal system — something most of us learned as kids, watching Schoolhouse Rock — and that should be worrisome to anyone who cares about America’s future.

RELATED: Donald Trump’s Constitution of One

Third, there’s little sign that Trump or anyone around him grasps how important and consequential the issue of judicial appointees is, or how much good it would do him to reassure Republicans who aren’t jumping on board the bandwagon. If there were a way to be absolutely certain that Trump would appoint two, three, or four Antonin Scalia clones during his presidency, a lot of Trump-skeptic conservatives might immediately see one giant reason to vote for him. If nothing else, they could rest easy knowing that the Second Amendment wouldn’t be effectively nullified or curtailed, that Citizens United would remain the law of the land, that voter-ID laws would be upheld, and that pro-lifers could continue to make progress in the courts.

#related#Yet, in October, Trump was asked if he would nominate his sister, Maryanne Trump Barry, a senior judge on the U.S. Court of Appeals who struck down New Jersey’s ban on late-term abortions, to the Supreme Court. “I would love to,” he said, “But I think she would be the one to say, ‘No way, no way.’” Trump later insisted he was kidding, and no one can begrudge him admiration for his sister, who, at 73, is unlikely to be nominated anyway. But the stakes are too high to joke about appointing pro-choice judges to the Court all the same.

And that’s the real tragedy of Trump’s rise: At a time when the future of the issues most vital to conservatives is more tied to the Court’s composition than ever before, the Republican party is about to nominate a man who inspires little confidence in conservatives. There are still actions he can take to help allay conservative concerns, and there’s still time for him to take them. But if he does, all evidence suggests it will be because they’re in his own best interests rather than the nation’s. Though it’s less than ideal, getting the right outcomes for the wrong reasons may be the best we can hope for now.

— Jim Geraghty is the senior political correspondent for National Review.

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