The SCOTUS Argument Debunked
Perhaps the most convincing argument coming from those who’ve decided to back up the truck to Donald Trump’s candidacy is the one regarding appointments to the Supreme Court. Even the most politically clueless individual realizes that Hillary Clinton will never nominate anyone with a conservative viewpoint. Hillary probably doesn’t even know any lawyers or professors who aren’t decidedly liberal. With one court vacancy already and the majority of the sitting Justices eligible for Social Security benefits, odds are the next President will have a once in a century opportunity to shape the Court. Certainly, nobody who cares about the Constitution can reasonably argue that a Clinton Presidency wouldn’t greatly imperil our system of government.
So the argument becomes we know what Hillary will do as regards SCOTUS, and that’s pack it with as many anti-gun, pro-abort, big government types as she can get past the Senate. Trump has at least made noises about nominating conservative justices. Who knows? He might actually keep his word on at least this subject and select people from the list he published a couple of weeks ago.
I’ll admit, that’s almost a compelling argument. Nobody of sound mind wants to see the Supreme Court packed with people who make Lenin look like James Madison. Of course, it relies on assuming that Trump will hold true to his word on this topic. And we know the old saying about assumptions… The question becomes, can we trust Trump to nominate, as he claims, a justice worthy of Antonin Scalia’s seat?
Well, no. In fact, I’m here to show that not only won’t he nominate a Scalia type to the court, but that his nominees would be every but as dangerous to the long-term health of the republic as Hillary’s. And I have two reasons I can say this with absolute, complete and total certainty.
First, one only need look at that list a little more closely. It’s a list of potential jurists that any high school junior could have put together in about 15 minutes by doing a Google search (and that’s assuming they were slow at copying and pasting). Of the eleven potential nominees, nine are politicians first, jurists second. None are considered an actual legal scholar, much less in the intellectual vein of Justice Scalia. Only three have taught law (one in an adjunct capacity only) and none taught the Constitution. Besides being intellectual lightweights, they all share two other things. The first is a trail of opinions justifying judicial activism. Their other common trait (one that frankly I applaud) is that all have struck down restrictions on the 2nd Amendment. Unfortunately, reading through their legal reasoning in doing so is at best, bewildering. Judge Sykes, for instance, is most famous for striking down Chicago’s attempt to outlaw gun ranges. (Well, in legal circles, anyway. She’s also famous for another reason). But in her opinion, she gave credence to the idea that prior restrictions on gun possession and ownership could and should be considered when adjudicating 2nd Amendment cases. In other words, had a prior legislature outlawed firing ranges and another court upheld that ban, she would have gone along with it. Or to put it more bluntly: she would place legal precedent ahead of the Constitution. That is about as far from Justice Scalia as one can get and not end up with someone named Ginsburg.
Perusing through the other nominees’ legal opinions reveals the same sort of bent. These are not legal conservatives. They may be social conservatives, but are willing to tear the Constitution to shreds in the name of their “conservatism.” Of course, that isn’t conservative at all. That’s the flip side of the same judicial coin that social liberals have been flipping for 70 years. It’s also the sort of person Trump has consistently been throughout his life. Which is to say, one with little regard for the law – and if the law gets in your way, either ignore it or change it. A politician willing to change the law willy-nilly is dangerous enough. A Supreme Court justice willing to ignore the Constitution in furtherance of a goal is inherently dangerous. In fact, we have one such “conservative” justice now occupying the Chief Justice’s seat, and it was his pursuit of maintaining the court’s “integrity” over the Consitutional principles it is supposed to be upholding that gave us Obamacare.
In this light, it isn’t surprising that actual Scalia-type legal scholars, who also happen to be social conservatives, are nowhere to be found in Trump’s thinking. Not one of Janice Rogers-Brown, Brett Kavanaugh or Paul Clement seems to even have been considered. I’m not even going to mention Mike Lee or Ted Cruz. We all know how Trump feels about Cruz, and putting Thomas Lee on the list seems like a sop towards Mike (they’re brothers). The point is, those are people who firmly believe in the Constitution’s delineation of powers, including restrictions on executive authority. If there’s one thing the Donald hates, it’s anyone telling him what he cannot do, especially a legal authority.
Which brings me to the second proof that Trump will not nominate a Scalia-type conservative. As you are probably aware, he is facing several lawsuits for his involvement with Trump University, about as scammy an operation as has ever operated in these United States. The one that is closest to being heard is in California, being presided over by US District Judge Gonzalo Curiel. Late last week, Trump launched into one of the most hateful diatribes against a sitting federal judge in US history. It was certainly a first for a presidential candidate. In terms of political assassination of a court, the only comparable thing that comes to mind was President Obama’s singling out the Supreme Court for not bending to his will during his 2010 State of the Union.
Stop to let that sink in for a moment: Donald Trump and Barack Obama have the same regard for courts that don’t do as they want.
Of course, Trump did his best to poison the well further. He decried Judge Curiel as Mexican (he’s actually from Indiana) in his inimitable “I’m-not-a-racist-but-I-am” wink & nod cattle call. Indeed, he pushed right up to the edge of facing contempt of court charges. That he hasn’t is an example of judicial restraint, a concept foreign to Judge Trump (as is restraint in anything). But more instructively, Trump’s willingness to harangue a sitting federal judge tells us what he expects from the judicial branch of the federal government: total compliance with Trump. Comply, or face my Brownshirts. In Curiel, however, Trump’s threats probably don’t have much currency. After all, he’s faced down Mexican drug cartels in his courtroom.
Besides sending a shudder up the spine of anyone who happens to think the separation of powers provided by the Constitution is a good idea that’s worked really well, this type of behavior also lays low one of the other arguments I’ve heard. Namely, that Trump would be constrained by the both the Constitution and the grinding bureaucracy of the federal system. Trump has already subverted the second half of that argument; watching the likes of Mitch McConnell and Marco Rubio licking his boots proves that. Seeing what Trump expects of a justice, and the lengths he will go to exact compliance, makes the first invalid, as well.