Among the most popular arguments given by Trump supporters, reluctant and enthusiastic alike, is that Hillary Clinton will nominate terrible justices to the Supreme Court, putting it in the control of liberals for decades and causing damage to United States case law that will be difficult to reverse. I tend to agree that that would be the case.
However, Trump voters should consider whether their candidate is likely to be good alternative. In fact, I have five reasons that I am skeptical that Trump would have great conservative justices confirmed, as the narrative currently suggests. My reasons come in the form of the appointees to SCOTUS from the last four Republican presidents.
Essentially, all four of those presidents were more conservative than Donald Trump, with the possible exception of Gerald Ford, depending on how you look at it. Taking a look at a few of the justices they were actually able to have confirmed, we can see that it is difficult for even more conservative Republicans to nominate someone who will not disappoint by sliding left or casting deciding votes on terrible and destructive decisions.
First up is Gerald Ford’s appointee, John Paul Stevens. Studies have shown Stevens to have been the most liberal member of the Court during his tenure. He was considered to be the Court’s liberal leader, in fact.
He wrote a dissenting opinion in Citizens United, which upheld donations to be free speech. He voted to strike down laws allow moments of silence or prayer in schools and he argued against the Ten Commandments being displayed in a Texas court house. Finally, he affirmed Roe v. Wade in no less than three opinions: Thornburgh v. American College of Obstetricians & Gynecologist, City of Akron v. Akron Center for Reproductive Health and, most importantly, Planned Parenthood v. Casey. Stevens was clearly no conservative.
Our next Republican president was Ronald Reagan. Reagan, the ultimate in modern conservative presidents naturally nominated multiple excellent choices for the Supreme Court, most notably, Antonin Scalia. He also had the distinction of appointing the first woman justice of the Supreme Court, Sandra Day O’Connor.
O’Connor was a well-respected centrist who began somewhat conservative, but her decisions and votes became more liberal over time. Her overall record is mixed. In Webster v. Reproductive Health Services she undermined Roe, but her vote in Planned Parenthood v. Casey was more important in affirming it. Perhaps most frighteningly, she habitually drew on foreign law in her decisions.
Trump supporters object that the Donald has already announced who he would nominate to the Court, so we know he’s a safe bet. Putting aside whether Trump is to be trusted (I contend he isn’t!), the likelihood of the Senate’s consent must be taken into account.
Take, for example, Reagan’s nomination of Robert Bork, who was famously denounced dishonestly and hyperbolically by Senator Ted Kennedy in such a scathing way that Bork was voted down by the Senate and denunciations of that fashion are now referred to as “borking.”
Reagan had to nominate another candidate in Bork’s place. This time he chose Anthony Kennedy. Kennedy has been a libertarian leaning swing vote on the Court. Again, his record is mixed.
He wrote the Court’s opinion in Lawrence v. Texas, which invalidated criminal laws against homosexual sodomy on the basis of the Due Process Clause, laws that Justice Clarence Thomas thought “uncommonly silly,” but that he argued the Constitution made no restrictions regarding. Stevens wrote the opinion that declared to Defense of Marriage Act unconstitutional. And he wrote the opinion of the Court on Citizens United. Perhaps worst, he was swing vote on Planned Parenthood v. Casey.
On the other hand, he joined the majority on District of Columbia v. Heller, which determined that the Second Amendment protects an individual’s right to possess a firearm in “federal enclaves.”
President George H. W. Bush’s record on Supreme Court nominees is also mixed. He nominated Clarence Thomas of course, but he also nominated David Souter. Souter was a reliable liberal, which is ironic, considering that Bush’s advisors expected his votes to be conservative. He also voted to uphold Roe in Planned Parenthood v. Casey.
Finally, George W. Bush nominated John Roberts. Now, Roberts has generally been considered a conservative and he was a shoe in for confirmation, due to his extensive work in the federal courts, however, conservatives will remember certain disappointing decisions, one in particular: National Federation of Independent Business v. Sebelius, which upheld the individual mandate in the ACA.
Considering Roberts’ experience and solid reputation, no one should expect such suspect reasoning as his argument to uphold the individual mandate.
The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.
If Ronald Reagan and George W. Bush can nominate justices who reinforce horrific liberal decisions and legislation, how much more can we expect Trump, who evinces no understanding of the Constitution and no interest in liberty, to be more discreet in his nominations?
Again, yes, he has a list of judges he would nominate, but on what issue hasn’t he flip-flopped. He also said that his pro-partial-birth-abortion sister, Maryanne Trump Barry, would make a great judge. Which Trump do you believe? The one who tells you what you want to hear?
My own guess is that, should he win the presidency, his conservative nominations will get shot down by liberals in the Senate (which he might help the GOP lose) and he will come back with centrist, pro-executive, big government judges.
That is not the amazing argument in favor of Trump that his supporters are looking for.