Posted on December 6, 2016



Court Jester

Has Trump fooled conservatives on judges?


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.



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