The SCOTUS Deal? How to Make it Work for Conservatives

A few Democratic senators are floating a trial balloon via Politico.

“A group of Senate Democrats are beginning to explore trying to extract concessions from Republicans in return for allowing Supreme Court nominee Neil Gorsuch to be confirmed, according to multiple sources familiar with the matter. The deal Democrats would be most likely to pursue, the sources said, would be to allow confirmation of Gorsuch in exchange for a commitment from Republicans not to kill the filibuster for a subsequent vacancy during President Donald Trump’s term. The next high court opening could alter the balance of the court, and some Democrats privately argue that fight will be far more consequential than the current one. At least three rank-and-file GOP members would have to pledge not to vote to unilaterally change the Senate rules through a majority-only vote later in Trump’s term — the so-called nuclear option.”

This harebrained scheme will never see the light of day in serious discussion. It is merely “desperate times calling for desperate measures”. No conservative website has come close to endorsing this idea, for a whole host of reasons. But considering this by taking logic to its extreme brings up an interesting scenario. Supposed the Republicans agreed with one caveat? The deal would only be implemented if Justice Ginsburg’s seat is the next vacant. After all, why agree for Justice Kennedy’s seat? He was appointed by a Republican.

The vast, vast majority of decision making bodies, (Board of Director, SCOTUS) have an odd number of members. Nobody likes or wants an evenly split vote. This is the situation Americans find themselves in currently. There are eight SCOTUS justices,  three conservative, one moderate centrist, and four that reliably vote liberal. The highest court of our land finds itself tied on far too many important decisions.

Once Neil Gorsuch is confirmed, there will be four conservative justices plus the moderate Kennedy, against four liberals once again giving conservatives the upper hand. But, and this is a very important but: the nominee to Ginsburg seat doesn’t have to be a liberal. President Trump can nominate another conservative. Which means Democrats would go crazy, and they would filibuster.

But in that scenario, what Republican would really care? There would be five in the conservative blocking bloc against three liberals. The most probable consistent voting scenario would be five to three. To be sure in a few cases, a four-four tie would be reality, and every so often Justice Kennedy goes completely off the reservation voting liberal. In either case, by and large, horrible liberal decisions are not being implemented. But the majority of the opinions would be written by Justices Alito, Gorsuch, Roberts, Thomas and Kennedy. Think about that SCOTUS team ruling the roost for a few years.

Seeing how Politico delights in making its living off of anonymous sources, it might be worthwhile for an unnamed Republican to use them to float this trial negotiation balloon. Just to see them squeal.

Gorsuch and Precedent: Democrats Want It Both Ways

The Senate Judiciary Committee questioned Supreme Court nominee Neil Gorsuch in public hearings over the last two days. It was evident his equanimity was frustrating to Democratic senators as they attempted to turn up the heat and expose him as a puppet of President Trump and the conservative right. What was also apparent was their frustration with Mr. Gorsuch’s refusal to avow select favored SCOTUS decisions as untouchable.

The doctrine of stare decisis is interpreted as SCOTUS giving previous Supreme Court rulings due consideration and respect while deciding cases. It is a judicial working doctrine meant to assure Americans their highest court’s decisions will have staying power, and therefore life decisions can be made without fear of sudden tumult or massive upheaval.

However, as George Will notes in his recent article, the court does not consider stare decisis to be ironclad: (WaPo):

“Chief Justice John G. Roberts Jr. says the doctrine of stare decisis — previous court decisions are owed respect — is not an “inexorable command.”

For liberal Democrats, Gorsuch is their worst fear realized. They are convinced he will don a black robe, take his seat and promptly begin the work of overturning their most beloved SCOTUS rulings. Even the leader of the pro-abortion organization NARAL is convinced (PBS):

Abortion rights groups immediately criticized the nomination, saying Gorsuch represents a threat to women’s reproductive rights and to the landmark Roe v. Wade Supreme Court decision legalizing abortion nationwide in 1973. “With a clear track record of supporting an agenda that undermines abortion access and endangers women, there is no doubt that Gorsuch is a direct threat to Roe v. Wade and the promise it holds for women’s equality,” NARAL Pro-Choice America President Ilyse Hogue said in a statement.

Senator Diane Feinstein D-CA wasn’t swayed by Mr. Gorsuch’s stated commitment to giving precedent due consideration, and during her time at the microphone decided to up the ante. From precedent to super precedent. Stare decisis to maxima stare decisis. (Townhall):

A day after sharing her unique view of our “evolving” Constitution, Sen. Dianne Feinstein (D-CA) wanted to know where Supreme Court nominee Neil Gorsuch stood on the issues of abortion and enhanced interrogation techniques on day two of his confirmation hearings. We don’t have much to go on regarding Gorsuch’s views on these hot button issues, so the senator hoped her line of questioning could bring them to light. “Was Roe v. Wade, the 1973 court ruling which gave women the right to abortion, decided correctly?” Feinstein asked.

It is liberal doctrine that Roe v. Wade is a landmark untouchable case, akin to Brown v. Board of Education. A case of such national import that SCOTUS cannot begin to contemplate overturning it. The problem with that thinking is that a landmark case should have the nation’s overall acceptance and approval. Roe v. Wade doesn’t come close to that formula. That didn’t stop Sen. Feinstein from pushing Judge Gorsuch on the issue, or asserting her belief that that the case had super precedent status.

During the Wednesday hearings, a Supreme Court decision came out overturning a Judge Gorsuch opinion concerning public schools and their responsibility to children with disabilities, Thompson R2-J School District v. Luke P.  Sen. Dick Durbin D-IL continued the verbal assault on Mr. Gorsuch excoriating him for his stance on this case, (Politico):

“It’s a powerful decision, it’s a unanimous decision, it was written by the chief justice of the court,” Durbin said. “Why in your early decision did you want to lower the bar so low?”

Judge Gorsch’s reply was both forceful and perhaps telling about how he will treat precedent once seated on the highest court in the land (Politico):

Gorsuch responded that he is often asked whether he abides by precedent and doesn’t always like the rulings he reaches. “Here’s a case for you,” he said. “If anyone is suggesting that I like a result where an autistic child happens to lose, that’s a heartbreaking accusation to me. Heartbreaking. But the fact of the matter is I was bound by circuit precedent,” Gorsuch continued. “I was wrong because I was bound by circuit precedent and I’m sorry.”

The Democrats questioning Neil Gorsuch wanted it both ways. Defend our favored precedents, but; understand we are going to drag you through the mud when you choose precedent over deciding to our favor.

To his credit, Justice Gorsuch repeatedly give his allegiance to the doctrine of stare decisis while not endorsing it as inviolate. But perhaps he gave them his own shot across the bow. Perhaps Sen. Durbin will come to regret this particular line of questioning. Perhaps the good judge was telling them,

“You’re right. I was wrong in following circuit court precedence while making that decision. But I’m putting you on notice, precedence be damned, I’m not going to make that mistake again.”

Maybe thats what he was saying, maybe not; but no matter. After two days of public hearings, conservatives can be exhilarated in his ascension to SCOTUS. He will indeed serve America faithfully.

Is Laura Ingraham Having Second Thoughts About Trump’s SCOTUS Nominee?

Long before she was a successful radio host, author and Editor-In-Chief of the conservative website LifeZette, Laura Ingraham clerked for Supreme Court Justice Clarence Thomas. In 2007, she described to Bill O’Reilly on The O’Reilly Factor the impact Justice Thomas has had on her personally and professionally. “I think a lot of us who’ve gone through really dark moments in our own lives, we can take a huge amount of inspiration and encouragement from his candor and from his absolute perseverance in the face of unending criticism,” she explained.

So it would be beyond interesting to learn what Justice Thomas thinks about Ingraham’s current worldview, which includes, above all else it seems, a full-throated defense of Donald Trump–regardless of the circumstance. Ingraham was one of the earliest to recognize the power behind Trump’s nationalistic message and its appeal to the white, working-class voters that would eventually catapult him to the presidency. For that, she deserves credit.

But her seeming inability to ever find fault in any of the new president’s actions or words should be viewed skeptically, particularly when she weighs-in on matters of the judiciary–the branch of government where she got her start.

If you’ve just awakened from a coma, let me quickly bring you up to speed: President Trump has been relentlessly criticizing the judges who’ve delayed his Executive Order calling for a temporary halt in immigration from seven countries deemed hotbeds of terrorism. In a meeting with Connecticut Senator Richard Blumenthal on Wednesday, Judge Gorsuch called Trump’s attacks “disheartening,” and “demoralizing.” In a tweet later that night, Ingraham expressed concern that Judge Gorsuch had spoken on the matter.

Perhaps Ingraham is correct in that Judge Gorsuch should “know better.” But shouldn’t the president be held to the same standard by both his critics and supporters? What does Justice Thomas think of the president’s continual shots over the bow of the branch of government he represents, a branch of government co-equal to the presidency?

In all of this I’m reminded of a tweet I saw earlier this morning, laying out a new rule that we’d all be wise to agree to. 1. Trump is not ALWAYS wrong. 2. Trump is not ALWAYS right.

If we can somehow agree to that, maybe we can finally make some progress.

SCOTUS Filibuster? Now He Owns It

Politico published an opinion piece authored by Sen. Chuck Schumer, Democrat Minority Leader this morning. You have to hand it to the camera hungry New Yorker, evidently he has decided to double down in favor of the progressive left fringe. Earlier, it appeared he would give Democratic collegues such as Sen. Jeff Merkley D-Oregon permission to filibuster and even voice support, while at the same time allowing senators facing difficult 2018 elections the latitude to vote against the filibuster. It was this same consideration which drove many pundits and politicians to openly speculate there would be no need for the nuclear option. Until today, this did really look like standard senate theatre, staged with every actor hitting their mark.

Which is what makes the good senator’s article today news worthy. He is now definitively stating party policy:

“These actions show a lack of respect for the separation of powers—and that’s why Senate Democrats will do everything we can to make sure that the next Supreme Court justice will be an independent check on an out-of-control executive.”

There should be no doubt where the Democratic Party sits now. Their leader has now announced the impending filibuster of SCOTUS nominee Neil Gorsuch. It fair to say he has the support of his party, which is undoubtably the reason he only used the word “filibuster” in reference to Republicans. Rather, he continues to advance the talking point centered about an imaginary 60 vote threshold being the “standard” for every SCOTUS nomination. Even the Washington Post decried his claim, awarding it Two Pinocchios.

“Democrats are being slippery with their language. Sixty votes is not “a standard” for Supreme Court confirmations, as two of the current justices on the court did not meet that supposed standard.”

Even more amazing is how he further expands this justification:

“Nominees to our nation’s highest court must demonstrate that they are mainstream and independent enough to earn the support of at least 60 senators from both parties. Both of President Obama’s nominees to the Supreme Court exceeded that level of support.”

Senator Schumer actually has the temerity to suggest Justices Kagan and Sotomeyor should be considered and actually are “mainstream” as validated by the votes of Republican senators.It doesn’t even take a Republican to comprehend how utterly deceptive this statement is. Conflating Republican votes for these two liberal Justices with their belief of them being “mainstream” is so ludicrous that it needs no defense. But, then he really sticks the knife in:

“The simple question we are asking is: Can President Trump’s nominee meet that same test? If the nominee fails to meet 60 votes, the answer isn’t to change the rules; it’s to change the nominee.”

In other words, don’t do what we threatened or in reality actually promised we would do in the event we got back in power. No, we’d now rather you honored rich tradition which by the way you are to blame for because you voted for our nominees.

The ever smug senator finishes his opus with a condescending pat on the head to the majority party:

“This is not unfair or obstructionist—this is the Senate doing its job by critically evaluating a nominee who will have immense impact on the lives of Americans.”

That’s rich.

The real question is how much power he really possesses. Is he similar to the belligerent boxer Harry Reid, or the “no red line I can’t walk back” former president?  He’s committed his party to obstruction, very soon we’ll find out if he can actually enforce it. In either case, he owns it now.

Dear Mitch McConnell: Now’s The Time To Go Nuclear on SCOTUS Filibuster

It doesn’t matter who President Trump picks for the Supreme Court. Democrats are going to filibuster and raise the bar to 60 votes.

“This is a stolen seat. This is the first time a Senate majority has stolen a seat,” [Oregon Dem. Sen. Jeff] Merkley said in an interview. “We will use every lever in our power to stop this.”

It’s a move that will prompt a massive partisan battle over Trump’s nominee and could lead to an unraveling of the Senate rules if Merkley is able to get 41 Democrats to join him in a filibuster. Sen. Amy Klobuchar (D-Minn.) also reminded her Twitter followers on Sunday night that Supreme Court nominees can still be blocked by the Senate minority, unlike all other executive and judicial nominees.

Senate Majority Leader Mitch McConnell expressed the opinion that he would do whatever it took to get Trump’s SCOTUS pick confirmed, and he has not ruled out invoking the “nuclear option” of removing the filibuster from Supreme Court nominations. That option is already gone for lower federal courts, and you’d better believe that if we had a Democrat in the White House with Democrats controlling the Senate, it would already be gone for SCOTUS.

But McConnell has not committed to the nuclear option either.

Respectfully, to Sen. McConnell: You can’t ride the fence on this one. Anything Trump touches is not going to be a genteel, cordial political tête-à-tête. It’s going to be something between a Mexican cockfight and a wild tiger fighting a momma bear. It’s to the death, for all the marbles, with no holds barred.

Let me reference point number 3 of “how Republicans can win when Trump is immensely unpopular.” (I know quoting myself is gauche, but doing it gives me “I told you so” privileges if this doesn’t happen.)

Stick it to the Democrats on the Supreme Court. Kill the filibuster. Reid would have done it. Shove it down their throats, and do it quickly because Trump may waver if he thinks he doesn’t have enough support for a SCOTUS pick. Sticking it to the Democrats is very popular among Trump’s core supporters.

Lose this one and 2018 starts looking really dim and stormy.

There’s only one way Trump will get a decent conservative nominee confirmed to the Court. McConnell must go nuclear. Do it now.

The Witch Hunt Against Bill Pryor Is Silly

The day after Election Day, I opined that Senate Majority Leader Mitch McConnell should immediately nuke the SCOTUS filibuster and nominate Eleventh Circuit U.S. Court of Appeals Judge William (“Bill”) Pryor for the seat left vacant by the untimely death of legal colossus Antonin Scalia and kept in conservative hands by Senate Republicans’ remarkably well-executed ploy to put a complete kibosh on President Barack Obama’s Merrick Garland nomination.  Though I have long maintained that Trump’s Heritage Foundation- and Federalist Society-compiled SCOTUS nomination list is undeniably a good one, I explained why I, personally, would give the nod to Judge Pryor:

Pryor is personally pro-life without exception, and has described Roe v. Wade as “the worst abomination in the history of constitutional law.”  He even doubled down on defending that prior-held belief, at his hotly contested appellate court confirmation hearing:

“I stand by that comment,” Pryor said.  “I believe that not only is [Roe] unsupported by the text and structure of the Constitution, but it has led to a morally wrong result.  It has led to the slaughter of millions of innocent unborn children.”

Pryor is properly skeptical of the legal malarkey (however one feels on the underlying policy merits) of the landmark Miranda v. Arizona case—thus evincing his willingness to flout flawed legal precedent and stare decisis norms, even in the context of a nearly-unanimously popular underlying policy—and is properly skeptical of most Eighth Amendment challenges.  He has upheld voter ID legislation, and can be more generally counted upon for all the constitutional issues near and dear to the hearts of conservatives: Second Amendment rights, religious liberty, structural federalism, and others.  In the realm of statutory interpretation, he is a reliable textualist.  And, largely due to his comments on abortion during his confirmation hearing, his nomination would be a delectably aggressive culture war salvo against a vapid and sclerotic progressivism that was just electorally obliterated last night.

To be clear, I think it is hard to go wrong in picking virtually any of the jurists from Trump’s list with whom I am familiar.  But with Tim Alberta of National Review reporting from the 2016 Federalist Society National Lawyers Convention about an emerging consensus of a final showdown for Scalia’s seat between Pryor and Seventh Circuit U.S. Court of Appeals Judge Diane Sykes and numerous well-connected friends of mine in the legal conservative movement saying much the same thing (with an occasional third or fourth name added to the list), I want to circle back to say a bit more about Bill Pryor.

Pryor is oftentimes considered the single most rock-ribbed originalist, juridically principled stalwart on Trump’s list.  Here was Alberta, in the aforementioned National Review piece:

[Pryor’s] ideological mooring makes him hugely appealing to elements of the conservative movement who have felt betrayed by Chief Justice John Roberts and are looking for the next Republican nominee to be an absolute slam-dunk.  Pryor would certainly be that: He famously once ended a prayer by saying, “Please, God, no more Souters.”

To be sure, pro-lifers could hardly dream of a more ideal jurist to replace Scalia.  Which is what makes it somewhat odd that there presently exists in some pockets of the conservative movement a campaign to derail Pryor’s SCOTUS nomination not on the political optics, but on the juridical merits.  Erick noted as such two weeks ago:

Pryor, who succeeded Jeff Sessions as Alabama’s Attorney General once Sessions got to the Senate, is well connected within conservative circles, is well liked by the future United States Attorney General [Jeff Sessions], and is considered one of the most conservative appellate judges in the country.

Several people have raised concerns about some of Pryor’s cases due to his rulings on gay rights and transgender issues, but his defenders say he was bound by clear precedent, which he would not be on the Court.

Due to the nature of issues involved, the pushback is naturally coming from some in the conservative religious liberty community.  This is somewhat ironic, given Pryor’s personally devout Catholicism and incontrovertible pro-life bona fides, but here we are anyway.

The two main Eleventh Circuit cases from Pryor’s judicial record that seem to be raising controversy, as far as I understand it, are Glenn v. Brumby (2011) and Keeton v. Anderson-Wiley (2011).  The Glenn case, which you can read a bit more about here and here, relied on U.S. Supreme Court precedent to effectively hold that discrimination based on transgender status must trigger heightened judicial scrutiny under the Fourteenth Amendment’s Equal Protection Clause.  Keeton involved the question of whether a faithful Christian student at a public university could be forced to undergo diversity/sensitivity training in order to affirmatively preclude her from disseminating to fellow students her belief in the inherent immorality of homosexual conduct.  The only other flaw from Pryor’s record that I keep on hearing referred to is the fact that, as Alabama Attorney General, he led the prosecution against Alabama Supreme Court Chief Justice Roy Moore back in 2003 after Moore defied a federal court order by failing to remove a Ten Commandments plaque from his courthouse.

An in-depth statutory/constitutional analysis of either the Glenn or Keeton ruling is beyond the scope of this post, but, suffice it to say that from even a cursory view of the applicable case law, there is a plausible argument that Judge Pryor may have been bound in each case.  (Note here that I am holding aside my own view—an admittedly fringe one—adopted from the University of St. Thomas School of Law’s Michael Stokes Paulsen, which posits that lower court judges are not only not bound by higher court precedent, but that it is actually a violation of a federal judge’s oath of office to willfully eschew principled statutory/constitutional exegesis in a given case in order to blindly follow stare decisis precedential norms.)  Readers interested in more than that should feel free to peruse Glenn and Keeton for themselves and assess whether they find either opinion particularly compelling.

Insofar as the Roy Moore kerfuffle is concerned, it is important to point out that Pryor’s involvement in prosecuting the case, as the then-Alabama Attorney General, was involuntarily thrust upon him.  Furthermore, while I am personally as passionately anti-judicial supremacy as they come and thus am very sympathetic to his critics’ broader point on this, we must pragmatically understand that there is a salient distinction between (1) loftier, more abstract criticism of judicial supremacy and (2) actual repudiation of it in legal practice.  To be most blunt and pragmatic about the situation, choosing not to enforce a judicial order as an executive branch official (such as Alabama Attorney General, which Pryor was at the time) is a really big deal.  Again, I proudly stand with Lincoln and agree that the executive possesses this independent interpretive prerogative, but I find it hard to fault those who may not agree—as a matter of prudence—with a specific ad hoc invocation and application of the power.  Thus, while the Moore kerfuffle is hardly Pryor’s proudest moment, it is really quite difficult to harp on him too much for it, either.

More generally, of course, it is simply the case that even the best of judges (unless your name is Clarence Thomas, perhaps) will occasionally err.  If Pryor is indeed tapped, I would hope that Sen. Mike Lee or Sen. Ted Cruz might press further at his confirmation hearing for details as to Pryor’s decisions to sign onto the court’s opinions in Glenn and Keeton.  But we are likely deluding ourselves if our nomination standard is to pick someone with literally zero question marks on his/her resume.

Furthermore, Pryor’s Eleventh Circuit judgeship nomination would be, as I said in my post-Election Day post, a “delectably aggressive culture war salvo against…vapid and sclerotic progressivism.”  Large swathes of the Left despise Bill Pryor, largely due to the tenacity he displayed at his Eleventh Circuit confirmation hearing in doubling and tripling down on his beliefs as it pertains to both abortion jurisprudence and abortion itself.  Pryor has demonstrated that he has the willpower and perseverance to withstand a concerted Leftist/MSM borking effort.

Here is a message I recently received from a staunch conservative friend who him/herself clerked on the U.S. Supreme Court, knows Judge Pryor personally, and is fed up with the current campaign by some to derail his chances of being nominated to the highest court in the land:

It amazes me that when there is a Supreme Court vacancy, many people I regarded as legal conservatives show their true colors.  Right now, several are engaged in whispering campaigns against one of the most conservative names on Trump’s list—William Pryor.  This fifth column has misrepresented opinions of this great judge to accuse him of being insufficiently conservative, while championing other judges who have never actually been tested by the Left.  What gets me the most is how these same people spend zero time scrutinizing the opinions of the judges they allege are better picks than Pryor—where they will find serious and systemic weaknesses if they even bother to look.  But, at bottom, we need a Supreme Court justice who is not going to care about what the Left says about them.  The best indicator of who our best pick would be is the apoplexy of the Left at the prospect.  That is why our best pick is Judge Pryor.

Trump’s SCOTUS list is, by any measure, genuinely excellent.  The individuals on the list are, by and large, truly principled jurists.  But judges are also human beings who will inevitably have resume items deserving of close scrutiny/follow-up, and we ought not to let the legitimately pristine be the enemy of the very, very, very good.  I’d still personally nominate Bill Pryor for Antonin Scalia’s SCOTUS seat.

The Next Justice Will Decide Presidential Powers on Immigration

The Supreme Court declined to rehear the case that has blocked President Obama’s executive actions on immigration. This means the court, which split 4-4 on the case last term, won’t rule again–likely after the next justice is confirmed.

The move was among the first as the short-handed and ideologically split Supreme Court eased back into action Monday for its 2016-17 term, and it came without any comment from the eight justices. It indicates, however, that the court thought it was still split evenly on that issue and is uncertain about when a ninth justice might be confirmed to break a tie in that and other cases.

This is all the more reason for the GOP-controlled Senate to block Merrick Garland’s confirmation until a new president (and Senate) takes office. Republicans are now seeing their chances improve in tight senate races such as New Hampshire and Florida–bringing renewed hope of at least two more years of congressional control.

If Trump wins, the entire issue of Obama’s executive orders is moot–as Trump would almost certainly rescind them. But he might issue some of his own, and therefore might want a less originalist justice to replace the strict Constitutional interpretations of Antonin Scalia. If Hillary wins, she could either stick with Garland, who would likely win confirmation by an easy margin, or she could try with her own pick of a more liberal justice.

Either way, the next justice may decide what the president can and cannot do with regards to immigration, including what amounts to unilateral granting of amnesty for those here illegally. When Congress reconvenes in a lame-duck session after November 8, if Hillary wins, they may confirm Garland just to deny her.

They shouldn’t. Republicans have made their bed, and should not unmake it for the new Congress and president. Save the next justice for the next term.

5 Reasons the Supreme Court Argument for Trump Isn’t Enough

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.