The Corner

Law & the Courts

Lists, Glorious Lists

President Trump shakes hands with Judge Neil Gorsuch after he was sworn in as an Associate Supreme Court in the Rose Garden of the White House, April 10, 2017. (Joshua Roberts/Reuters)

One of the odd things about the triumphalism over the Kavanaugh pick — which is a great pick as far as I’m concerned — is that the wrong people are taking the most credit for it. People seem to forget that the list Trump committed to was a constraint on him. It is a list of the conservative legal establishment’s favorites that was, for the most part, imposed on the president at a time when millions of Republican voters were still skeptical about him. These voters wanted to beat Hillary. They wanted a “disruptor.” But the idea of taking a flier on the judiciary was scary. Before Trump embraced the list, he’d been talking about appointing his sister to the Supreme Court. But after he agreed to essentially outsource the process to the Federalist Society and the Heritage Foundation, conservative concerns were allayed. Yes, the list got longer after the election, but the transactional relationship with the Federalist crowd was established.

Oh, and let’s be clear: Kavanaugh is a win for the conservative and Republican establishment. He’s no Bannonist. He’s not Judge Jeanine.

I bring this up for a couple reasons. First, it shows what serious, non-hysterical Trump skepticism can yield. The NRA may not be overtly skeptical of Trump, but it is very good at signaling to Trump that the political reality of his coalition requires bending to it. The same goes for issues such as abortion and immigration. Trump was pro-choice for most of his life. It was made clear to him that this was untenable for a GOP president. So, voila, he’s pro-life now.

People keep telling me I need to understand that the Right has a transactional relationship with Trump and that we’re getting a lot in return. That’s fine. I like many of the transactions, though I don’t necessarily love the price we pay for them. But whenever these transactions pay off, the people who tell me that it’s all transactional suddenly move the goalposts and insist that this is the real Trump. Really? The guy who promised to protect “article twelve” of the Constitution really cares about originalist judges?

Many Trump boosters are using the Kavanaugh pick as a way to bury the so-called Never Trumpers.

But the “Never Trumpers” — at least some of them — deserve as much credit as the “Always Trump” crowd. You get more concessions in a transactional relationship if you hold out for a good deal. But if you tell your negotiating partner that he’s brilliant no matter what he says or does, that he should always go with his instincts, and that he can do no wrong, you don’t rack up as many wins. And the wins you get aren’t as good.

My second, shorter point: I’m starting to think that all presidential candidates should compose similar lists in the future. So long as the Court dominates so much of our lives and drives so much of our electoral politics, why shouldn’t voters have a better sense of who a president’s appointees might be? I need to think it through a bit more, but I’m definitely leaning that way. The list was the smartest thing Trump did as a candidate, and I’m inclined to think it could be one of his most beneficial contributions to politics going forward.

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