Bench Memos

But What About the Supreme Court?

Trump Replacing Scalia Is Not Enough

A recent essay of mine at Public Discourse, on choosing not to vote for either Trump or Clinton, “went viral” as much as anything of mine ever has, and I heard directly from a young woman who wanted me to elaborate on a portion of it where I said the following:

Even “what about the Supreme Court?” has no grip on my conscience when I try to imagine Donald Trump in the Oval Office. I cannot trust him to choose judicial nominees wisely, and there are other things whose cumulative weight is greater even than this variable.

What did I mean by this, asked “Ruth” (not her real name)?  She had read an article by the evangelical professor Wayne Grudem, who seemed to consider the Supreme Court issue decisive.  Why didn’t I, and what added up to more weight than this?  Judging from Donald Trump’s own recent statements, he might ask the same.  Only yesterday he said, while campaigning in Virginia:

Even if people don’t like me, they have to vote for me.  They have no choice . . . Even if you can’t stand Donald Trump, you think Donald Trump is the worst, you’re going to vote for me.  You know why?  Justices of the Supreme Court.

Mr. Trump may say this until he is a bluish orange in the face.  But is it so?  Here was my answer to Ruth:

Dear Ruth,

I too have friends who believe that the future of the Supreme Court is the one and only reason to cast a ballot for Donald Trump, in order to prevent Hillary Clinton from nominating justices.  I have read Wayne Grudem’s article, and this is practically the only substantive argument he makes for Trump as well.  As someone who has studied, taught, and written about constitutional law and the Supreme Court for three decades, I too recognize this as the single strongest argument for voting for Trump.  But there are a couple of ways to think this through.  One is to carefully weigh the variables involving the Court itself, and the other is to think about the larger universe of everything else.

First, then, to the future of the Court itself.  With Justice Scalia’s passing, the opportunity exists for President Obama, or potentially a President Hillary Clinton, to replace a reliable conservative with a reliable liberal.  The best-case scenario is a President Trump maintaining the status quo by nominating and successfully appointing a new justice who is just as conservative as Scalia.  But this would not change the current balance of the Court, which had (until Scalia’s death) four liberals, four conservatives, and a swing vote in Justice Kennedy, who is sometimes moderately conservative on some issues but who regularly betrays us on abortion, marriage, and now affirmative action too.

If Clinton is elected, we will “lose the Scalia seat.”  That is a net loss.  If any more deaths or retirements occur under President Clinton, they are most likely to be among the justices to the left on the Court, since they are oldest: Ginsburg, Breyer, Kennedy.  Replacing them with liberals would change nothing except to push the survival of their ideology into a much longer future, with younger justices continuing their work.  Not good, of course, but we cannot expect Democrats never to occupy the White House again.  Sooner or later these opportunities will come their way, perhaps even to replace Thomas, Alito, or Roberts in future.

So what we are talking about, then, is staking everything on (a) keeping the “Scalia seat” to avoid a short-term net loss, and (b) the possibility of replacing Ginsburg, Breyer, and/or Kennedy, any one of which would be a net gain for us.  But (b) is only a possibility, not a certainty.  Even Justice Ginsburg could hang on until 2020, when Democrats would be sure to do to a President Trump what Republicans are doing now to President Obama—prevent him from moving a nomination forward in an election year.  Even in 2019, if Democrats are in charge of the Senate after a midterm election, they could force a President Trump to offer a “moderate” rather than a conservative.  I watched this happen in 1987 to Ronald Reagan, with the defeat of Bork’s nomination, which gave us Kennedy and . . . you know the rest. 

It is really just (a) the “Scalia seat” that can be said to weigh heavily in this argument, then.  And it is even conceivable that next year Democrats could block a real conservative’s nomination with a (threatened) filibuster, demanding a “compromise” for a “moderate.”  Why would President Trump go all out for our kind of justice?  Does anyone believe he would care enough?  Is there any evidence he does now?  As for the eleven names of potential nominees Trump has put forward, I have my doubts about the quality of some of them.  And one of them whom I know personally has said to me privately that while he/she is flattered, being named is not enough even for him/her to vote for Trump!

We invest far too much energy and concern in the Supreme Court.  I would like to work, long-term, on ways of making that institution less important in our political life.  I don’t see Donald Trump being any help in that project, nor do I see any help coming from a Republican Party remade in his image.

So let us turn to the second matter—everything else at stake in this election.  On policy matters, to the extent I can figure out what Trump stands for, I’m opposed to almost everything he declares he wants to do.  Build a wall and make Mexico pay for it?  Won’t happen, and would be dumb to try.  There are people who are serious about immigration and our borders.  Trump is not one of them.  His reversal of free-trade policies would harm our economy, including the very people he says he wants to help.  On taxes, he constantly contradicts himself.  On social issues, we have no reason to believe he is our friend—on abortion, marriage, or religious liberty.

And so far we are staying in the zone of “let’s treat Trump like a normal politician with political ideas we can debate.”  He is not a normal politician, and he is almost devoid of coherent ideas.  He is shockingly ignorant, to the point of not even knowing what he does not know—about the Constitution, economic growth, the nation’s social pathologies, our foreign affairs, you name it: you probably know more than he does.  His mental stability is questionable, as he displays great self-absorption, touchiness, impulsiveness, cruelty, vindictiveness, short attention span, and emotional neediness.  I shudder to think of him in charge of our foreign policy, national security, or military decision-making in wartime (and we are actually involved in low-level wars right now).  He is a man with a bad character.  We have found this out about past presidents too late—such as Nixon.  We know it already about Trump.  Also about Clinton.  Hence I cannot vote for either one of them.

It is highly probable that whichever candidate is elected, he or she is bound to be very unpopular very quickly, to suffer setbacks in the midterm election, and to be defeated for reelection in 2020.  As a price to be paid for winning this November, the damage Trump would do to the Republican Party for a generation seems too high to me.  I am a conservative.  I can’t vote for Clinton.  But since I am a conservative who cares about his country, I can’t vote for Trump, either.  I have friends who are equally conservative, who care just as much, and who do plan to vote for Trump.  But our judgments differ this time.  For me, “saving Scalia’s seat” is not nearly enough.


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