The Corner

Trump and Judges

I generally agree with Ross Douthat’s observations in this interview, but I disagree when he says that Trump is more likely to get judicial appointments right because it isn’t an issue that he cares about. I think that is probably right about the lower courts but wrong about the Supreme Court.

Douthat compares nominating Supreme Court justices to picking a vice-presidential running mate. The difference is that Trump needed a running mate that was acceptable to the Republican regulars. Trump would need to get a Supreme Court nomination through a Senate that is likely to be closely divided.

Jan Crawford Greenburg pointed out that the partisan and ideological politics of Supreme Court nominations are asymmetrical. The dynamics of the Washington and media elites are such that it is much more difficult for Republicans to get a conservative nominee approved, while is assumed that Democrats will nominate (and get) only liberal nominees.

That doesn’t mean that Republicans are doomed to lose. It does mean that winning involves winning the public discussion about the role of the Supreme Court, winning the battle of public perceptions about the character and qualifications of the nominee, and having a credible threat to nuke the filibuster if the Democrats are too recalcitrant.

That takes preparation, finesse, and determination. It isn’t the path of least resistance. George W. Bush had all that and he still almost messed it up. (I don’t know how Harriet Miers would have worked out, and I’m glad we never had to find out. I’ll take Sam Alito.)

There is no reason to suspect that Trump knows or cares anything about the role the Supreme Court plays on abortion, religious liberty, or much of anything else. The path of least resistance for Trump would be to cut a deal with incoming Senate Democratic leader Chuck Schumer to nominate a blank slate (who would turn out to be a liberal) and then get Senate approval through united support from the Democrats and the votes of whatever Senate Republicans wanted to stay in Trump’s good graces, or who secretly weren’t all that upset about a Supreme Court that is aggressively liberal on social issues.

Least resistance doesn’t mean no resistance. Such a move would risk splitting the GOP apart. Certainly principled conservatives — including many who signed the “Scholars and Writers for Trump” letter — would oppose such a move. You could also expect other voices in the GOP hailing such a Trump move as “pure gold” and telling the purists to get over it.

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