Many Republicans are trying to persuade themselves to support Donald Trump. They start by admitting a problem they have with him: "I’m embarrassed that Trump attacked a Gold Star family ... " or “Yes, he’s confused about the nuclear triad...” And then they come to this conclusion: “But we have to support him because of the Supreme Court.”
As conservative law professors, we share the concern that a Hillary Clinton victory would halt decades of efforts to restore an originalist interpretation of the Constitution. Since Justice Antonin Scalia’s death in February, the court has been divided between four very liberal justices and four conservatives (some more than others). Central constitutional concerns, including religious freedom, voting rights, property rights, the death penalty and gun control are up for grabs, possibly turning on the views of the next new justice.
Trump himself has been gloating over the leverage the situation sets up. “They have no choice,” he said on the stump in Virginia not long ago. “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.”
Faced with mounting international instability, Trump’s answer is to promise an unpredictable and unreliable America. He has proposed breaking U.S. commitments to NAFTA and the World Trade Organization, closing our military bases in Japan and South Korea, repudiating security guarantees to NATO allies, pulling out of the Middle East, and ceding Eastern Europe to Russia and East Asia to China. A Trump presidency invites a cascade of global crises. Constitutional order will not thrive at home in a world beset by threats and disorder.
While he is shaking up the world, Trump will also nominate conservatives to the federal courts — or so he says. But no one should rely on his vague promises. He has already flip-flopped on numerous core issues, such as the minimum wage, tax rates and entitlement reform. Even when he announced his list of judges in May, Trump would not be pinned down.
“We’re going to choose from, most likely from this list,” he hedged in a Fox News interview, adding “At a minimum, we will keep people within this general realm.”
While he is shaking up the world, Trump will also nominate conservatives to the federal courts — or so he says. But no one should rely on his vague promises
Why should we be confident that Trump, who mistook the number of articles in the Constitution and erred in thinking that federal judges could investigate Hillary Clinton, knows the boundaries of “this general realm”? Besides, choosing justices does not belong to the president alone. Senate Democrats and their allies in the media and the academy, will launch unlimited political warfare to stop conservative Supreme Court nominees, as they did with Judge Robert Bork in 1987 and attempted to do with Clarence Thomas in 1991.
In fact, Republican presidents have filled 12 of 16 Supreme Court vacancies since 1968. Only four of the those confirmed were truly conservative jurists (William Rehnquist, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.), with the rest either outright liberals (John Paul Stevens and David Souter) or moderates (Sandra Day O’Connor, Anthony M. Kennedy, John G. Roberts Jr.). Trump’s outbursts won’t persuade the Senate to embrace more conservative nominees, where Reagan’s sunny optimism and George H.W. Bush’s patrician decency failed.
If, miraculously, a President Trump were to succeed in making some favorable appointments to the Supreme Court, the results cannot be guaranteed to satisfy conservatives.
For example, had Scalia lived or had another conservative quickly filled his seat, that wouldn’t have prevented the court from upholding racial preferences in college admissions, thanks to Kennedy’s vote in Fisher vs. University of Texas this term. Also this term, Kennedy joined the court liberals to strike down a Texas effort to regulate abortions. In 2015, with Scalia alive and well, Kennedy also provided the fifth vote in Obergefell vs. Hodges, striking down federal and state bans on gay marriage.
In 2012, Chief Justice Roberts joined the four liberals to uphold the Affordable Care Act, one of the most disruptive extensions of federal power in our nation’s history, and introduced the idea that Washington’s taxing authority is essentially unlimited.
Recent history shows that even conservative appointees flinch from upholding constitutional norms when they fear it will provoke a strong political response against the court. Trump will not be able to change this depressing reality.
Conservatives who are indulging delusions about a Trump presidency are fantasizing even more about the Supreme Court. The inconstant ideological majorities of the Supreme Court cannot provide reliable protection for a conservative constitutional agenda. Conservatives must face the hard political challenge of consistently winning elections that advance the cause of limited government not just for the presidency and Congress, but also for governors, statehouses and mayoralties.
Even if Trump were to win in November, it is in the legislative and executive branches that conservatives will have to win their most important battles. Does Trump look like the man to lead them?
John Yoo is a professor at the UC Berkeley Law School. Jeremy Rabkin is a professor at the Antonin Scalia Law School at George Mason University. They are also scholars at the American Enterprise Institute.
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