By now, you’ve no doubt heard how this argument goes. Donald Trump is bad candidate, but the next president will fill anywhere from one to four new Supreme Court justices, shaping the court’s decisions for decades to come. We know Hillary Clinton would appoint bad judges who won’t subscribe to an originalist interpretation of the Constitution and thus will tend to defer to government, expanding its size and scope. Trump might appoint equally bad judges, but then again, he might not. In this case, the slightly less bad choice is to go with the devil you don’t know and vote Trump.
That is in many ways a compelling (if depressing) case, and I understand why many conservatives and even libertarians who otherwise find Trump abhorrent have found it persuasive. Unfortunately, though its premise about Clinton is likely correct, its conclusion is still deeply wrong for at least eight reasons.
1. We don’t really know who Trump would pick, as I’ve explained at The Week:
[A] major flaw in this line of reasoning is the utter lack of evidence to suggest Trump is capable of delivering the sort of nominees conservatives (let alone libertarians like myself) want. True, he has released a list of potential justices whose credentials have reassured some court-centric voters. But with a candidate as mercurial as Trump, that list is meaningless: Hastily composed, it includes a Texas judge who regularly mocks Trump on Twitter (sad!). Worse, within hours of sharing the list, Trump indicated he would not be bound by it once in office.
2. But his view on free speech suggests it wouldn’t be good, as Leon H. Wolf pointed out at Redstate in a piece aptly titled, “The Trump tweet shows why I don’t want any of Trump’s Supreme Court justices” (emphasis added):
Trump’s conception of the concept of Freedom of the Press is literally, and without exaggeration, the old Soviet position of freedom of the press: the press is as free as they want as long as they only things that aren’t “lies”; and by the way, “lies” are distinguished from “truth” exclusively by the authority of the State. […]
When he varies from the talking points his campaign has assigned him to signal that he is sound on judges, you see his true impulses seeping through. And his true impulses are authoritarian, opposed to liberty, and mostly concerned with what he will be able to get away with doing when he is President. The most important question that a President Trump would likely ask of any judicial nominee would be, “what would you vote to prevent me from doing?” and the candidate who has the shortest list probably gets the Trump nod.
Note the time stamp on that tweet, but the way: August of this year. That’s not some old position Trump can plausibly disavow.
3. Ditto his approach to civil liberties generally, as argued by my Week colleague and fellow libertarian Shikha Dalmia:
[Trump’s vision for the GOP] is an authoritarian, nationalistic, right-wing party whose main goal is to aggressively realign the economy around the interest of domestic workers by fanning the fires of xenophobia and protectionism. George Mason University’s Ilya Somin points out that such a party will have no use for federalism, separation of powers, and individual rights. To the contrary, such commitments are likely to be an impediment to its goals.
It is unclear what the full contours of Trump’s judicial philosophy would be, Somin notes, but they are likely to include sweeping executive powers, a narrow view of freedom of speech, and tight restrictions on civil liberties.
4. Not to mention his view on eminent domain. Me at The Week again:
[Trump’s love of eminent domain] tells us Trump defaults to defense of government rather than liberty. His approach to jurisprudence is the opposite of strict scrutiny, in which the burden of proof is placed on the state to justify alleged violation of our constitutional rights and freedoms. For Trump, the burden of proof is on the victim to explain why a tremendous, beautiful, huge, and — crucially — government-endorsed project or program should not occur.
With nominees in this mold, SCOTUS would become a rubber stamp of approval for every whim of the state.
5. A President Trump might not even be able to get his picks through Congress, as even those sympathetic to the SCOTUS vote argument must admit:
“The Supreme Court—and judicial appointments more broadly—is probably the single best reason to vote for Trump,” said Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute. “But even then, there’s a lot of uncertainty. How hard would Trump push to get a nominee confirmed? What would he do if his first choice were rejected? Would he make a ‘fabulous deal’ to trade judicial appointments for other priorities?”
6. And that’s assuming a GOP Senate majority, which is far from certain. Steve Deace explains this problem at Conservative Review:
According to Larry Sabato’s Crystal Ball website at the University of Virginia, the Republican’s current majority of 54 is now subject to an election with 24 GOP and 14 Democrat seats at stake. Only the despicable seat of Sen. Harry Reid, D- Nev. (F, 2%) is deemed up-for-grabs on the Democrat side of the ledger. However, two GOP states— Wisconsin and Illinois — have already flipped in Sabato’s eyes, and five are in the up-for-grabs category on the Republican side. Oh, and that includes the kinda/sorta/maybe important electoral vote strongholds of Florida, Ohio, and Pennsylvania.
You know, places where Trump is making an historic attempt to spend almost nothing and organize almost nowhere.
7. Happily, however this election turns out, ideological balance at SCOTUS matters less than most realize. Here’s Dalmia again:
[S]etting aside the high-profile cases that both sides use to rally their base, on a day-to-day basis, partisan disagreements don’t affect the court all that much. Tuttle notes that between January 2012 and June 2014, the Supreme Court ruled against the Obama administration unanimously 13 times — on everything from recess appointments to abortion clinic “buffer zones.” Nor was this an anomaly. Since 1995, more than 40 percent of cases were settled unanimously by the court.
8. And finally, SCOTUS nominations are not the only important thing the president does. I’ve argued before at Rare that the most important role of the presidency is foreign policy, a measure I still endorse and by which Trump (like Clinton) fails miserably. But it is intriguing to see basically the same argument coming from David Frum, whose foreign policy beef with Trump is very different from my own:
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.