It’s an old story: fighting the next war with the last war’s battle plan, as if prior success guarantees future victory. So here was President Trump after the Supreme Court gave him another thumping on Thursday, vowing to release “a new list of Conservative Supreme Court Justice nominees” in September — i.e., around the back stretch galloping toward the Election Day finish line.
The president reasons: “Based on decisions being rendered now, this list is more important than ever before (Second Amendment, Right to Life, Religious Liberty, etc.).” Lest we miss the characteristically Trumpian subtlety, he adds, “VOTE 2020!”
If you needed a laugh to get you through just-another-day-at-the-Apocalypse, our “Conservative” president then proceeded to post no fewer than 21 tweets describing the combined hundreds of millions of dollars in infrastructure spending he plans to shovel out to states he hopes to win in November.
By the way, with Trump in the White House and the McConnell-led Republican Senate having slyly buried periodic public debates over the debt limit, the nation is now over $26 trillion in the red. If you’re keeping score, that’s an increase of over $6 trillion since January 20, 2017. Obama spending was unprecedented, but Trump is on pace to exceed it. And don’t tell me about the unforeseen coronavirus crisis; debt was already accumulating mountainously before the lockdown, and the president keeps saying more infrastructure spending is imperative — it may be the only thing he and congressional Democrats can agree on.
The point being that the president is not a conservative, in the sense either of political ideology or temperament. He has some conservative sensibilities and has mastered some right-wing tropes. But he’s not a conservative thinker wedded to a conservative policy agenda. That’s hardly a revelation. He’s not wired to think in those terms. He’s not a progressive, either.
What is he, then? Does it matter? After all, he’s president not because of what he is but what he isn’t — which is Hillary Clinton. That’s fine, but Republicans and conservatives who’ve been supportive of Trump should not delude themselves that things have changed, that the president has evolved into a conservative because we’d like him to be one, or because he occasionally proclaims himself one.
The euphemism has always been that the president is “transactional.” Of course, that only makes sense as the simulacrum of fixed principles if there is something identifiable that the transactions are designed to advance. In the president’s case, that would be Donald J. Trump. That is not an original observation, either.
What conservatives and Republicans often gloss over, since it is not very flattering, is that we are transactional, too.
Don’t get me wrong. I am not singing from the Never-Trump hymnal. I am not accusing my fellow conservatives and Republicans of whoring themselves, of checking their principles at the door and making loyalty to the president their compass. Quite the opposite. The trick in this uneasy alliance has always been to maintain our principles while convincing the president to come around. Not because he necessarily agrees, since his agreements are fleeting. He has to be convinced that it’s in his interest to come around.
Which brings us to this business of fighting the last war.
When Donald Trump was a presidential candidate, his impulse — and, as we’ve seen, there is no seven-second delay between an impulse and its verbalizing — was to assert that his sister would be a “phenomenal” nominee should a Supreme Court vacancy open up. Judge Maryanne Trump Barry, the president’s older sister who has since retired from the Third Circuit federal appeals court, was a dogmatic supporter of abortion. Trump’s suggestion thus caused consternation on the right, particularly among legal scholars and social conservatives. He realized a retraction was in order, tout de suite.
The incident turned out to be significant. Trump was not necessarily persuaded by the virtues of originalism and limited government (though we can always hope). He did, however, grasp the power of the issue, its galvanizing effect on the voters he was wooing.
When Justice Antonin Scalia unexpectedly passed away in February 2016, the candidate realized that the campaign had shifted. It would no longer feature the usual vaporous debate over Supreme Court nominees. Now, the election might well turn on the concrete question of whether a Republican or Hillary Clinton should be the one to fill the pending vacancy. Indeed, the vacancy in its suddenness pushed to the front of voters’ minds the advanced ages of many remaining justices, and the likelihood that the next president would have more than one vacancy to fill.
Donald Trump was fast on his feet. He sized up the esteem in which Republicans hold the Federalist Society, as well as the consternation among his base supporters that a President Hillary Clinton would replace the iconic Scalia with a progressive activist. Trump saw that it was demonstrably in his interest to become the champion of conservative judges in the Scalia mold. He was deft enough to see that leaning on the Federalist Society for this purpose would not only signal the right nomination instincts but also earn him some credibility with skeptics who saw Trump as a New York limousine liberal.
It worked. To his detriment, though, the president has never allowed himself to acknowledge how narrow — I think, how miraculous — his victory was. Hence, the babble about “the Electoral College landslide.” More to the point, the president now seems not to see how unique were the conditions of the 2016 battleground. Replication of that battle’s plan is not a path to 2020 success.
Let’s put aside that there is no vacancy on the table, no sense of urgency to preserve the Scalia legacy. In just the last few days, the Supreme Court has demonstrated, yet again, that stacking the tribunal with ostensibly conservative lawyers does not assure conservative results.
Once again, Chief Justice Roberts joined the four-justice liberal bloc to preserve a signal Obama policy achievement. Last time it was Obamacare, this time it’s DACA. Though sold to the Right as a rock-ribbed conservative, Roberts essentially held that a new president may not reverse the last president’s illegal acts in the same peremptory manner in which those acts were imposed. Or, if you prefer, even if Obama himself conceded that he had no authority to issue a decree, Roberts will treat the decree as legitimate law. I wouldn’t bet the ranch that the chief justice would be as solicitous if Trump were to start issuing similar “policy memos” that usurp legislative power, but just imagine what a Biden administration could make of the new dispensation.
What about the president’s responsive tweets, quoted at the top? With due respect, the rights to armed self-defense, life, and religious exercise are not at stake because of a failure to nominate and confirm reliable conservative jurists. They are at stake because Republicans cling to the fantasy that the Supreme Court is our highest legal institution. In reality, it is a super-legislature: It is the last word on vital policy matters that should be decided democratically; and its members are life-tenured — politically unaccountable even as they do politics rather than law.
Democrats get this.
The liberal justices typically vote as a bloc. Like good legislators, what they care about is the result. They are all brilliant lawyers, so once they decide what progressive policy result should be achieved, they transmogrify as needed into originalists, textualists, procedural sticklers, organic constitutionalists, sweet-mystery-of-life liberty fetishists — you name it, they can play it.
Likewise, Chuck Schumer and the other Senate Democrats demand to know how every nominee would rule on Roe v. Wade, on guns, on health care, on boys in the girl’s bathroom, on the environment, on the due-process entitlements of “migrants,” jihadists, and sundry anti-American transgressives, etc. All prospective justices bob and weave, but Democrats are unapologetically relentless in grilling Republican nominees. None of this GOP pablum about how “it would just be so wrong to probe how a jurist might grapple with an issue that might come before the Court — because we must respect the integrity and independence of the judicial process.” Democrats say, “How are you going to vote? That’s what we need to know.” Republican nominees must ritually incant that “Roe is settled law because, um, stare decisis”; Democratic nominees must simply show up for work on the first Monday in October.
It will not do for one side to honor jurisprudential protocols and fret over the Court’s reputation, while the other side remorselessly pursues its “Change!” agenda. While President Trump is neither a political philosopher nor a juridical theorist, he is often more perceptive than egg-heads and swamp denizens when it comes to that kind of brute power dynamic.
This is not about the legal acumen of the nominees; it is about the political nature of the institution. Somebody on the Republican side better figure that out. If we think the 2016 playbook is going to win the 2020 game, Joe Biden will make it to the Oval Office without ever having to leave his basement.