Ever since Donald Trump became the nominee-apparent, many Republicans and conservatives have been agonizing over whether or not to ultimately vote for the NYC billionaire. Those supporting Trump generally fall back on one of two arguments when trying to convince their conservative friends to support Trump (and they are really two sides of the same coin). Argument 1: we cannot allow Hillary Clinton to become president. Argument 1a): if Clinton is elected, she will get to make Supreme Court appointments.
It is true. If Clinton wins, she will get to make Supreme Court appointments as they become available. It is one of the duties of the president and it is a duty that does not expire until their successor takes the Oath of Office. And it is quite likely that every pick Clinton makes will be to the left of Merrick Garland on the political spectrum. Such justices will almost certainly trumpet the “Living Constitution” doctrine of Constitutional interpretation, which allows justices to impute meaning into the Constitution that was not intended by the Founders or the creators of the various amendments since 1787. Usually, this means that the federal government is augmented at the expense of state governments and the people. I do not believe this is proper jurisprudence and I believe it given the judiciary a larger role than it was designed to have. The Court hears about 100 cases every year and have the power to declare laws unconstitutional and interpret rights. They do not make laws, nor do they have the power to enforce them. The judiciary was designed to be the weakest branch of government and I believe that is still their proper place.
That said, I have no faith that Donald Trump will do anything differently. Yes, he submitted his list of potential nominees, but then almost immediately announced that he would not necessarily stick to the list. As with everything else in Donald Trump’s record, “the list” is flexible and his words and promises are merely that: words. Second, even if he did actually appoint someone from that list, it is likely that the Democrats will control the Senate and vote down anyone on that list. And even if they do not control the Senate, the Republicans will not be able to invoke cloture as they will not be able to muster 60 votes. As such, any successful nomination Trump would make would have to be moderates, in the mold of Merrick Garland.
With Trump, there are even greater risks than that. By putting Don Willett on his list of potential nominees, he proved that he had no role in the process. The Khizr Khan, Judge Curiel, and Megyn Kelly sagas (among other such feuds) prove that the ultimate sin in Trump’s world is criticizing him. Judge Willett (one of my favorite accounts on Twitter) criticized Trump repeatedly before the list was ever published. Had Trump actually been part of that process and taken the time to familiarize himself with these names, Willett would have been as likely to appear on his list as Justice Curiel. Which brings me to another reason to distrust him; the saga of Justice Curiel shows that Trump will publicly criticize justices who rule against him in future cases. He will not put another Scalia on the Court, because Scalia would rule against most of Trump’s harebrained and/or illegal schemes on the grounds of violating the Constitution. As president, Trump’s hostility to the Court will almost certainly surpass that of Andrew Jackson and FDR. If he wants his agenda to go unimpeded, he should probably appoint Living Constitutionalist judges. Finally, Trump is a political novice who has probably never read a single Scalia Dissent and has not shown that he actually understands what an “Originalist” is. As such, he is almost certain to fall victim to “stealth nominees,” the way that Dwight Eisenhower (Earl Warren and William Brennan), Gerry Ford (John Paul Stevens), and George H.W. Bush (David Souter) all did. When considering all these various complications, any conservative voting for Trump for the Supreme Court is clearly grasping at straws and engaging in wishful thinking.
My issues with the politicization of the Court, however, go far deeper than not trusting Trump to successful nominate and confirm an Originalist justice. Instead, I take issue with the Republicans’ approach on the Supreme Court in that I believe they are fundamentally re-writing the Constitutional procedures for filling Court vacancies and re-writing the Constitutional role and purpose of Supreme Court justices. With regard to procedures, the Republicans’ refusal to even meet with Merrick Garland is allegedly due to the timing of Nino Scalia’s death as it relates to the election. This, of course, has proven to be demonstrably false, as the lack of recent election year Supreme Court appointments has been due to chance more than design. The only election year appointee to be shut down in the last 80 or so years, Abe Fortas, was not confirmed due to ethics problems, not to the impending election. And although a lame-duck appointment might not be advisable, there is nothing in the Constitution that prohibits a lame-duck president from filling a vacancy. Scalia died in February; there was more than enough time on the agenda for the Senate to at least give him a hearing and a vote.
Thus, this new doctrine based on the “election year” denies to the president a power that is expressly granted to the president in the Constitution. But the alleged principles behind this change are even worse. According to Mitch McConnell, they are opposing Garland not because they do not believe him worthy to take Scalia’s seat, but because they want “the people to decide” on that seat. This could not be further from the Founders’ intentions. They wanted the Court to remain independent and insulated from popular passions. They gave the power of appointment to the president and the power of confirmation to the Senate precisely to avoid having the people vote on Court seats (and even if they were okay with democratizing the Court, the President is still a duly-elected official whom "the people" entrusted with the power to pick Court seats, anyway). A great irony in this is that the Senate Republicans are essentially forfeiting their Constitutional role in the process, as they will not have the political capital to reject any of Clinton’s nominees if Trump loses in November. How could they possibly deny Clinton any nominee if they have made the entire election about Scalia’s seat and lost? Clearly, the Republicans’ new doctrine re-writes the Constitutional procedures surrounding the Court and in doing so, in the greatest irony of all, dishonor Scalia by destroying the Founders’ intentions.
Court appointments are important, there is no doubt about it. And I do not have a problem with them factoring into a person’s decision on how to vote. However, there is a difference between saying “I want Candidate X to make Court appointments” and saying “It is an election year, let’s have the people vote on this specific seat.” It leads me to wonder what the future holds for Supreme Court appointments, and when it is that a president loses this fundamental right to nominate candidates for vacant seats. Will every future vacancy constitute a political crisis? If not, why? Will every future justice look like Merrick Garland; a well-qualified, well-mannered moderate justice few people really like? Only time will tell. In the meantime, I am deeply disturbed by the precedent the Senate Republicans and National GOP have set by re-writing Constitutional procedures regarding the Supreme Court on the false premise that “the people must decide” and that presidents cannot make appointments during election years. They could have made it about finding a worthy heir to Scalia’s legacy, instead, they have taken a path Scalia would have abhorred.
It is true. If Clinton wins, she will get to make Supreme Court appointments as they become available. It is one of the duties of the president and it is a duty that does not expire until their successor takes the Oath of Office. And it is quite likely that every pick Clinton makes will be to the left of Merrick Garland on the political spectrum. Such justices will almost certainly trumpet the “Living Constitution” doctrine of Constitutional interpretation, which allows justices to impute meaning into the Constitution that was not intended by the Founders or the creators of the various amendments since 1787. Usually, this means that the federal government is augmented at the expense of state governments and the people. I do not believe this is proper jurisprudence and I believe it given the judiciary a larger role than it was designed to have. The Court hears about 100 cases every year and have the power to declare laws unconstitutional and interpret rights. They do not make laws, nor do they have the power to enforce them. The judiciary was designed to be the weakest branch of government and I believe that is still their proper place.
That said, I have no faith that Donald Trump will do anything differently. Yes, he submitted his list of potential nominees, but then almost immediately announced that he would not necessarily stick to the list. As with everything else in Donald Trump’s record, “the list” is flexible and his words and promises are merely that: words. Second, even if he did actually appoint someone from that list, it is likely that the Democrats will control the Senate and vote down anyone on that list. And even if they do not control the Senate, the Republicans will not be able to invoke cloture as they will not be able to muster 60 votes. As such, any successful nomination Trump would make would have to be moderates, in the mold of Merrick Garland.
With Trump, there are even greater risks than that. By putting Don Willett on his list of potential nominees, he proved that he had no role in the process. The Khizr Khan, Judge Curiel, and Megyn Kelly sagas (among other such feuds) prove that the ultimate sin in Trump’s world is criticizing him. Judge Willett (one of my favorite accounts on Twitter) criticized Trump repeatedly before the list was ever published. Had Trump actually been part of that process and taken the time to familiarize himself with these names, Willett would have been as likely to appear on his list as Justice Curiel. Which brings me to another reason to distrust him; the saga of Justice Curiel shows that Trump will publicly criticize justices who rule against him in future cases. He will not put another Scalia on the Court, because Scalia would rule against most of Trump’s harebrained and/or illegal schemes on the grounds of violating the Constitution. As president, Trump’s hostility to the Court will almost certainly surpass that of Andrew Jackson and FDR. If he wants his agenda to go unimpeded, he should probably appoint Living Constitutionalist judges. Finally, Trump is a political novice who has probably never read a single Scalia Dissent and has not shown that he actually understands what an “Originalist” is. As such, he is almost certain to fall victim to “stealth nominees,” the way that Dwight Eisenhower (Earl Warren and William Brennan), Gerry Ford (John Paul Stevens), and George H.W. Bush (David Souter) all did. When considering all these various complications, any conservative voting for Trump for the Supreme Court is clearly grasping at straws and engaging in wishful thinking.
My issues with the politicization of the Court, however, go far deeper than not trusting Trump to successful nominate and confirm an Originalist justice. Instead, I take issue with the Republicans’ approach on the Supreme Court in that I believe they are fundamentally re-writing the Constitutional procedures for filling Court vacancies and re-writing the Constitutional role and purpose of Supreme Court justices. With regard to procedures, the Republicans’ refusal to even meet with Merrick Garland is allegedly due to the timing of Nino Scalia’s death as it relates to the election. This, of course, has proven to be demonstrably false, as the lack of recent election year Supreme Court appointments has been due to chance more than design. The only election year appointee to be shut down in the last 80 or so years, Abe Fortas, was not confirmed due to ethics problems, not to the impending election. And although a lame-duck appointment might not be advisable, there is nothing in the Constitution that prohibits a lame-duck president from filling a vacancy. Scalia died in February; there was more than enough time on the agenda for the Senate to at least give him a hearing and a vote.
Thus, this new doctrine based on the “election year” denies to the president a power that is expressly granted to the president in the Constitution. But the alleged principles behind this change are even worse. According to Mitch McConnell, they are opposing Garland not because they do not believe him worthy to take Scalia’s seat, but because they want “the people to decide” on that seat. This could not be further from the Founders’ intentions. They wanted the Court to remain independent and insulated from popular passions. They gave the power of appointment to the president and the power of confirmation to the Senate precisely to avoid having the people vote on Court seats (and even if they were okay with democratizing the Court, the President is still a duly-elected official whom "the people" entrusted with the power to pick Court seats, anyway). A great irony in this is that the Senate Republicans are essentially forfeiting their Constitutional role in the process, as they will not have the political capital to reject any of Clinton’s nominees if Trump loses in November. How could they possibly deny Clinton any nominee if they have made the entire election about Scalia’s seat and lost? Clearly, the Republicans’ new doctrine re-writes the Constitutional procedures surrounding the Court and in doing so, in the greatest irony of all, dishonor Scalia by destroying the Founders’ intentions.
Court appointments are important, there is no doubt about it. And I do not have a problem with them factoring into a person’s decision on how to vote. However, there is a difference between saying “I want Candidate X to make Court appointments” and saying “It is an election year, let’s have the people vote on this specific seat.” It leads me to wonder what the future holds for Supreme Court appointments, and when it is that a president loses this fundamental right to nominate candidates for vacant seats. Will every future vacancy constitute a political crisis? If not, why? Will every future justice look like Merrick Garland; a well-qualified, well-mannered moderate justice few people really like? Only time will tell. In the meantime, I am deeply disturbed by the precedent the Senate Republicans and National GOP have set by re-writing Constitutional procedures regarding the Supreme Court on the false premise that “the people must decide” and that presidents cannot make appointments during election years. They could have made it about finding a worthy heir to Scalia’s legacy, instead, they have taken a path Scalia would have abhorred.