Republicans won’t get a conservative Supreme Court judge without winning the White House. The party’s nominee knows this and is using it to his advantage.
Donald Trump’s support is collapsing among conservatives. In the latest CBS poll, only 64 percent of self-described conservatives support the Republican nominee. In 2012, Mitt Romney won 82 percent of self-described conservatives. Twenty-one percent say they will vote for Clinton instead, a crossing of ideological and party lines that would have once seemed unimaginable.
Some conservative commentators, notably broadcaster Hugh Hewitt, have endorsed this claim:
If Hillary Clinton wins, the Left gavels in a solid, lasting, perhaps even permanent majority on the Supreme Court. Every political issue has a theoretical path to SCOTUS, and only self-imposed judicial restraint has checked the Court’s appetite and reach for two centuries.
For that reason, among others, Hewitt concludes: “Of course I’m voting for Donald Trump.”
1) It’s a Trump commitment, and Trump commitments are notoriously worthless. The only thing you can be sure you get with Trump is … Trump himself. Every other offer is subject to cancellation without notice.
2) Trump’s lack of understanding and interest in constitutional issues is notorious. This is the man who imagines there are 12 articles in the Constitution, and who believes that generals must obey any order from the commander-in-chief whether it is lawful or not. He wouldn’t be able to identify the next Antonin Scalia if a reincarnation of the great conservative justice were to sing opera in front of him.
3) President Trump’s judicial selections will therefore be driven not by him personally, but by his White House staff. Yet we’ve all seen the kind of people Trump surrounds himself with: incompetent at best, thuggish at worst. Trump chose the reality-TV star Omarosa to direct his outreach to African Americans. Who’s he going to put in charge of judicial selection?
4) Although Donald Trump cares little about constitutional norms, he cares a lot about getting his own way. When the judge in the Trump University case failed to comply on a legal point personally of concern to Trump, Trump erupted with allegations of ethnic bias: “We are building a wall. He’s a Mexican. We’re building a wall between here and Mexico.” If Donald Trump ever gains the power to nominate a justice of the Supreme Court, what he will seek will not be conservatism. It will be pliability on whatever issue is preoccupying Trump at that particular moment.
5) The relationship between Trump and the Republican leadership in Congress has already deteriorated. If he somehow can win the presidency, it will deteriorate further, as congressional Republicans try to impose their agenda on him—and Trump in turn tries to dominate them. Isn’t it more likely that President Trump will choose his judicial nominees to spite Paul Ryan and Mitch McConnell than to please them?
6) Choosing judges is among the very most important things a president does, but not in fact necessarily the most important. Questions of war and peace—and fundamental economic management—matter at least as much, if not more. If Donald Trump stumbles into a war with Russia because he tempted them to attack NATO ally Poland … nobody will be consoled that his Supreme Court nominees were solid on federalism.