Posted on December
6, 2016
Court Jester
Has Trump fooled conservatives on
judges?
by
Daniel
Clark
Donald Trump has largely succeeded in convincing conservatives
of his sincerity when he promises to appoint pro-life judges to the Supreme
Court, but would somebody who was really committed to doing so be speaking
about it in those terms? If you look at
what the president-elect has actually done to this point, he seems to be
executing a plan to prevent any conservative justices from being confirmed
during his presidency.
First, Trump sought the help of conservative think
tanks like the Heritage Foundation and the Federalist Society in compiling a
list of potential Supreme Court nominees from which he could pick. So far, so good. By publishing the 21 names he was given,
however, he has needlessly subjected those potential appointees to months if
not years of opposition research, which has no doubt already begun. By the time President Trump gets around to
nominating one of them, the Democrats will already be fully prepared to destroy
that nominee, and the nominee’s family, if necessary.
Maybe
that’s just a well-meaning rookie mistake.
It strains credulity to think the same is true of Trump’s promise that
these potential nominees would be pro-life, and would overturn Roe v. Wade when given a chance. Nothing disqualifies a Supreme Court nominee
faster than evidence of prejudice regarding an issue that’s likely to come
before the Court.
A pro-life president would promise, as George W. Bush
did, to appoint strict constructionists who would faithfully apply the
Constitution. That’s the proper role of
the judiciary, after all, not behaving as a super-legislature, casting votes on
policy proposals. Most people on both
sides of the abortion issue are fully aware that a Supreme Court that respected
the Constitution would recognize that there is no right to abortion. The fact that this outcome would result from
the proper application of the law, and not literally from a “vote” on a
political issue, is no trivial matter. Employing
judicial activism, albeit to produce a conservative policy result, would
nevertheless be unconstitutional and anti-republican.
By turning the judicial nominating process into a
policy referendum on abortion, Trump has made it extremely difficult to win the
votes of any Democrat senators. In fact,
he’s practically guaranteed a filibuster.
Even in the unlikely event that the Republicans implement the so-called
“nuclear option” prohibiting the filibuster of judicial nominees, winning a
simple majority will be difficult enough.
Their advantage in the Senate will only be 52-48 or 51-49, depending on who
wins next week’s runoff election in Louisiana.
Pro-abortion GOP senators Susan Collins of Maine and Lisa Murkowski of Alaska
will vote with the Democrats. The highly
improbable best-case scenario, then, is that the Republicans win that Louisiana
seat, and suffer no more defections during the confirmation hearings, so that
Vice President Mike Pence would cast the deciding vote after a 50-50 tie.
More
likely, Trump’s first choice will be either defeated or forced to withdraw, leaving
him to negotiate with the Democrats on a compromise nominee. Trump will have to concede that the 21
candidates on his list have been taken out of circulation, but will assure us
that he’ll come up with a tre-MEN-dous new nominee. “BEE-LEEV
me!” When he presents his new, stealth
selection, many conservatives will undoubtedly trust him. After all, his first nominee was a good one,
right?
Trump has set everything up to unfold this way, but is
he simply exercising poor judgment, or is he playing pro-life conservatives for
a bunch of saps? Perhaps it will help if
we look at how he’s dealt with other issues.
Early in his primary campaign, he adamantly swore that he would deport
all of the illegal aliens. By the time
he was elected, he was only committed to deport those illegals who have
committed felonies while in our country.
Otherwise, he parroted the liberals’ rhetoric about deportations
“tearing families apart,” a consideration that inevitably leads to some form of
amnesty.
On the border, he’s already jettisoned his grand
design for “The Great Wall of Trump,” settling instead for a partial
fortification of the border fence that is already required by law. His insistence that Mexico will pay for the
project has morphed into a recognition that we will foot the bill, “with the
understanding” that Mexico will, for some reason or other, reimburse us.
All of a sudden, Trump has “an open mind” about the
Paris Climate Agreement, and is holding face-to-face meetings with Al
Gore. And about locking up Hillary
Clinton, never mind. These are all
concessions that Mr. Art of the Deal
has made before even encountering any legislative opposition.
Trump supporters talk as if his stated positions on
these issues were never serious in the first place, but that they were just
opening salvos in negotiations – a curious defense of the guy who “tells it
like it is.” Is the same true about
judicial nominees? If so, then what is
it that he actually hopes to accomplish?
One thing’s for sure, he does not want our nation to be governed by its
Constitution. As his support for the Kelo v. New London eminent domain decision
indicates, Trump does not respect property rights, so why would he appoint
justices who would adhere to the Constitution, and thus be inclined to overturn
Kelo?
In what sounds like a plea for the reinstatement of
the Sedition Act, the president-elect has repeatedly said he wants to “open up
the libel laws” so that he can sue publications that are critical of him. In the primaries, he even threatened to sue
Ted Cruz for defamation, for using a sound bite of Trump’s own words in a
political ad against him. What would be
his interest in appointing justices who would interpret the First Amendment as
it is written?
Okay, so Trump is not a constitutionalist, one might
argue, but if he succeeds in putting pro-life judges on the bench, he will
incidentally be defending the Constitution in other ways. Okay, but what is his motivation for doing that? His explanation for his conversion to the
pro-life side, first given when he was mulling a presidential run in 2011, is
opportunistic and flimsy, to put it charitably.
He lamely explains that a friend of his didn’t want the child that his
wife was carrying, but that the kid turned out to be a “superstar.” When asked by the Daily Caller if he would have still become pro-life if the child
had been a loser, he said, “Probably not, but I’ve never thought of it. I would say no, but in this case it was an
easy one because he’s such an outstanding person.”
What a bizarre answer.
If this possibly existent friend’s child was a loser – however that is
defined – Trump would be no less aware of the child’s humanity. Yet that alone would not have been enough to
convince Trump of his right to life. It
was only his estimation of that child’s value that mattered. Unborn superstars have a right to life, but
unborn losers? He’s not so sure. Margaret Sanger could hardly have said it
better.
When Trump appeared on 60 Minutes a few weeks ago, interviewer Lesley Stahl
hyperventilated that if Roe v. Wade is
overturned, “some women won’t be able to get an abortion.” If he were the straight-talker that people
credit him with being, he might have responded, “Of course not. That’s the whole point.” Instead, he backpedaled, and consoled her with
the option that, “They’ll perhaps have to go to another state.”
“And that’s OK?” Stahl responded with contrived
indignation. Trump’s response: “Well,
we’ll see what happens. That has a long,
long way to go.” So, when confronted by
a member of the pro-abortion media, his reaction is to reassure her that
abortions will remain available, and that nothing is going to happen with
regard to that issue in the near future anyway.
Hardly the words of a man who is willing to spend lots of political
capital to get pro-life conservative constitutionalists on the Supreme Court.
It has become a standard pro-Trump excuse that nobody
ever really expected him to do what he said in the first place. Nobody really believed we would ever deport
all of the illegal aliens. Nobody really
believed that Mexico would pay for us to build a wall across our Southern
border. Nobody really believed we were
going to bring back waterboarding.
Nobody really believed he would bother pursuing charges against Hillary
Clinton. Nobody really believed that he
would abolish the EPA. How long will it
be before we’re told that nobody really believed that any of those 21 judicial
candidates would ever be confirmed?
Trump has no philosophical motivation to nominate
strict constructionists to the Supreme Court.
Neither do his conservative-hating confidantes like Roger Stone and
Steve Bannon, who must be laughing their alt-right buttocks off at how their
man has already undermined the potential nominees on “his” list, without
mainstream Republicans even catching on.
The obvious question about Trump’s promise, then, is what’s in it for
him?
It
may be that the issue’s value to him was realized on Election Day. Then, at least he might feel compelled to pay
off in order to aid his reelection bid in 2020.
Unfortunately, that hope fails to account for the value of Trump’s
judicial nominating power as a bargaining chip for other initiatives.
If there’s one promise we can count on Trump to make
every effort to fulfill, it’s his plan for a trillion-dollar stimulus package. As President Obama has demonstrated, such
massive scale pork-barrel spending provides a potent mechanism for fostering
political cronyism. The greatest
obstacle between Trump and the power to decide who gets all that free money is his
own party. He’ll need the help of a lot
of Democrats to deliver that power to him, and what could they possibly want in
return, if not the ability to continue to implement their agenda through the
courts, without the interference of the American people?
Trump has nothing to fear by breaking his word on
judicial appointees, because he’s never held accountable anyway. One week, he champions a cause with
unparalleled fervor, and a week later, he adopts a radically different and
invariably more liberal position. Not
only do conservatives not blame him, but they credit him with outwitting the
liberals, by keeping them off-balance while he prepares to blindside them with
The Big One, whatever that is. See how
this works? If Trump doesn’t follow
through on his Supreme Court pledge, that’s not a betrayal, but a brilliant rope-a-dope
tactic. We’ll probably even be told that
he tricked the Democrats into opposing the 21 people on his list, so that he’ll
be forced to select someone else who, secretly, will be a greater
constitutional hero than any of those others.
It’s as if Trump voters hardly care what he does,
because they figure he’s already held up his part of the bargain by being
elected. He has made it possible for the
maligned mainstream of society to take the inside-the-Beltway elitists down a
peg. To expect anything in addition to
that, like a return to a constitutional republic, would just seem greedy.
The Shinbone: The
Frontier of the Free Press
Mailbag . Issue
Index
. Politimals
. College
Football Czar