Law & the Courts

Trump Must Stick to His Supreme Court List

President Trump at a White House briefing, April 9, 2018. (Carlos Barria/Reuters)
It’s what he campaigned on, and it was crucial in reassuring the conservatives who helped elect him.

Presumably, as you read this, the White House is setting up its war room for the Supreme Court confirmation battle to come. The interns are stocking the mini fridges and hanging the musk-masking air fresheners that are de rigueur for any top-flight political bunker.

But before the administration goes to the mattresses, it first must pick a nominee. And that is why I hope White House counsel Don McGahn, who’s leading the search, is hanging a sign for all to see: “It’s the list, stupid.”

Over the next week, the White House will come under incredible pressure from the news media, the Democrats, and some Republicans (pro-choice and abortion-squeamish) to abandon the list of potential Supreme Court nominees President Trump campaigned on (and later expanded slightly). On Sunday, Republican senator Susan Collins of Maine said on ABC’s This Week that the president “should not feel bound” by the list.

Yes, yes he should.

All presidents claim broad mandates for virtually all their campaign promises. But the president has no clearer decree than fidelity to this list.

During the presidential primaries, as Trump inched closer to securing the nomination, millions of Republicans remained lukewarm about his candidacy. Their biggest substantive reservation: the Supreme Court. In the past, Trump had floated the idea of putting his own sister on the court. He later claimed it was a joke. No one laughed.

In 2016, Trump issued a list of eleven names he would choose from to replace Justice Antonin Scalia. The lineup had been outsourced to, and approved by, the conservative legal organization the Federalist Society and the conservative think tank the Heritage Foundation. In consultation with those groups, Trump later expanded the list, once during the general election and then again last November. Now, as Justice Anthony Kennedy plans to retire July 31, it stands at 25 names.

The list isn’t perfect. No offense to the Federalist Society or the Heritage Foundation, but it wasn’t handed down on stone tablets. Still, everyone on it is eminently qualified for the job, albeit some more than others.

And contrary to some of the chatter one hears on social media and cable TV, the list is emphatically non-Trumpist. Nearly everyone on it would have been considered by any other Republican president. There’s no Roy Moore or Jeanine Pirro here.

Indeed, that’s why the would-be president had to put out the list in the first place. Many in the GOP were willing to throw the dice on Trump the Disruptor when it came to immigration or trade, but the Supreme Court was too important to take a flyer on. By design, the list isn’t radical. It’s reassuring, at least to the voters who elected Trump.

Nothing unifies the Right more than the idea that this president should appoint conservative judges. The border wall, the Muslim ban, trade wars, Putinphilia: All of these issues divide the coalition that got Trump elected to one extent or another. The list unites it.

Of course, if you’re a liberal, uniting the Right is hardly a priority. But the simple fact is that any potential nominee who could conceivably win even a handful of Democratic senators would be a betrayal of Trump’s most important campaign promise and would cost him far more in Republican support.

If Trump were to nominate an obviously solid conservative not on the list, conservatives would probably live with it, but it would be a needless breach of trust with Republicans that would earn nothing from Democrats. Meanwhile, if he were to name some “bipartisan” liberal judge, the conservative backlash against George W. Bush after his nomination of Harriet Miers would seem like a polite disagreement over a game of bridge at the old-age home by comparison.

So it’s fine for Democratic senator Kamala Harris to declare that the list’s 25 potential nominees are “complete nonstarters.” The fact is, anyone Trump might nominate would be a nonstarter for her and nearly all of the Democratic caucus. There’s simply no Solomonic bipartisan compromise that could please everybody.

For Trump, sticking to the list would please more people than any other option within the realm of the possible. It would also have the most democratic legitimacy because this is what the president very explicitly campaigned on.

That seems like a good standard to adhere to these days. Liberals who demand that the president untether himself from this commitment and go with his instincts may not have thought through how that might work out.

© 2018 Tribune Content Agency, LLC

Jonah Goldberg — Jonah Goldberg holds the Asness Chair in Applied Liberty at the American Enterprise Institute and is a senior editor of National Review. His new book, The Suicide of The West, is on sale now.

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