The question with which John Yoo ends his post is the crucial one. Trump’s list of judges is a good one–but could he be trusted to actually nominate people like that to the federal courts?
Ordinarily Republican presidential candidates do not release such lists. Instead they say they will nominate judicial conservatives, publish white papers explaining the qualities they seek in judges (including the judicial philosophies they seek), and name a conservative justice or two that they admire. Trump released this list precisely because conservatives trust him less than the average Republican politician on this issue.
Why is he trusted less? First, because he has done less than most Republican politicians to demonstrate any commitment to the mainstream conservative view of the courts, the Constitution, and the judiciary. Second, because his lack of basic knowledge about the courts–e.g., his reference to judges’ “signing bills”–suggests that making solid judicial appointments is not a priority for him. Third, because when he has discussed constitutional issues–such as eminent domain and free speech–his views have been the opposite of those of most judicial conservatives. Fourth, because he often says he wants to make deals and that conservatism is a second-order concern for him, and making deals with the Democrats on judges would preclude fighting for judicial conservatives. (Trump’s interest in getting conservative judges on the bench is in doubt; the Democrats’ interest in blocking them is not.) Fifth, because he has frequently broken his word and casually abandoned his previously stated positions.
The likelihood that Trump, as president, would appoint conservative judges is at least a little higher now that he has released this list. But it remains the case that to get conservatives on the bench, a President Trump would have to be willing to fight hard and take political risks for principles he has never shown much sign of caring about.