Conservative journalist Hugh Hewitt calls it Donald Trump’s “trump card” against the conservatives who oppose him: The Supreme Court is on the line. Trump sees it the same way.
“If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway,” the candidate said at a recent rally in Cedar Rapids, Iowa. “You know why? Supreme Court judges, Supreme Court judges.”
The court is, as they say, the strongest argument for Trump — but it’s still a weak argument.
It’s true that the winner of the presidential election will nominate a successor to Antonin Scalia, the late conservative justice. It’s also true that Hillary Clinton would nominate someone who is sure to appall conservatives. Every Democratic nominee since the Johnson administration has been a lockstep liberal.
A Clinton appointee to the Supreme Court would almost certainly vote to make it impossible to use democratic means to enact school choice, to end racial preferences in college admissions or to protect unborn children. At the same time that appointee would allow regulations that impinge on rights actually mentioned in the Constitution, such as free political speech and the right to bear arms. The Constitution that Americans actually ratified would recede even further into the rear-view mirror.
The fact that the Supreme Court is such an important issue in the election — one that Trump can use to appeal to people who but for that issue would recognize his unfitness for the presidency — is itself a sign of how much distance we have put between ourselves and the Constitution. The court was never meant to be the arbiter of so many policy issues. It is the third branch of government, the one Alexander Hamilton assured us we had little reason to fear since it can neither start wars nor spend money.
Trump has offered a list of judges whom he might nominate to the court if he is elected. Conservatives have praised that list, saying the judges on it would move the court back toward a more appropriate role.
But conservatives can have no confidence that Trump would both nominate and win confirmation for someone on the list.
Trump’s word is meaningless. He stiffs creditors and contractors. He lies about matters small and large: about having told Republicans to hold their convention in Ohio, about letters he supposedly received from the NFL and about having opposed the Iraq war from the start. Trump isn’t even trustworthy on his signature issue of immigration: He flip-flopped twice in one day during the campaign about whether high-skilled immigrants should be kept out as a threat to American jobs or welcomed as a boon to our economy.
Why would he keep his word on the courts? He doesn’t care about the Constitution or the proper role of judges. When he talks about the Constitution, it’s glibly and dismissively. When it’s suggested that the Constitution might pose an obstacle to his plans, he says it “doesn’t give us the right to commit suicide.” He knows almost nothing about the law: He can’t tell the difference between a judicial opinion and a bill.
The few times he has taken an interest in constitutional issues, he has been on the other side from most conservatives. He thinks the government should have broad power to take people’s property and give it to developers; they don’t. He has used courts as a weapon to silence critics, and thinks it should be easier to use them that way. Most conservatives find that record and that idea appalling. If President Trump asks his aides to find him a judge who agrees with him on these issues, they will start by scrapping his list.
To get a conservative on the Supreme Court would require a President Trump to wage an ideological war with Senate Democrats, even though he says he would prefer to be a dealmaker, and even though that war would turn on issues for which he has never in his life shown the slightest concern. Instead of making good on his promise, he could cut a deal with the Democrats. His nominee could then win confirmation with the support of most Democrats, moderate Republicans, and some conservative Republicans who will want to be on the same side as Trump. Then he could turn to issues that excite him, like the precise design of the “big beautiful door” he is going to put in his wall with Mexico.
Trump defenders could still retort that Clinton’s nominees would be worse. And perhaps they would be. If conservatives support Trump on that basis, though, it means that all Republicans will ever have to do for them is nominate judges who are slightly better than the hypothetical worst. That’s a declaration of surrender in the fight for conservative constitutionalism.
And there’s one more thing. The argument that conservatives have to support Trump because of the courts is not just a weak argument. It’s an argument from weakness. It’s an argument that conservatives should overlook every flaw Trump has, every objection they have to him, because — well, listen to how Trump put it in Cedar Rapids. “Have no choice, sorry, sorry, sorry. You have no choice."
These are not the words of a man who respects conservatives who care about the courts as a vital part of his coalition. They’re the words of a man who is barely trying to hide his contempt for them. Conservatives who trust him on the courts are earning that contempt.