A week ago in this space I wrote in support of Donald Trump. I gave three reasons for voting for Trump, beginning with the most important: the fate of the United States Supreme Court.
The fact is that the confirmation of even one Hillary Clinton nominee to the Supreme Court will turn the court in a hard left, almost certainly irreversible direction. This isn’t really debatable. But my premise that this reality compels a vote for Trump turns out to be very debatable.
Since that column appeared, any number of folks — some of them with significant and deserved reputations for brilliance and integrity, and some of these friends — have argued with the premise that saving the court from its inevitable hard left lurch under Clinton is not reason enough to support Trump.
I had two #NeverTrumpers on my radio show to discuss this ongoing debate. The first, National Review’s Charles C.W. Cooke, is a “wet” #NeverTrump. He might yet support the GOP nominee. (Cooke cannot yet vote as he will not be a citizen until next year.) Our conversation is here.
Professor Tom Nichols of the Naval War College is, by contrast, a never-ever-never #NeverTrumper. That’s because Nichols is in the “Trump could start a nuclear war” camp.
If I thought Donald Trump would start a nuclear war, or any sort of war, in a fit of pique I’d be #NeverTrump too. But I don’t, so I’m not. I think it would help Trump to curb this particular line of attack to name his secretary of state, secretary of defense and national security advisor. (My colleague Robert O’Brien has written on this subject here. Such an action is not illegal despite what some have argued about the applicability of an old statute intended to halt trading jobs for political support.)
But most of the “the Supreme Court doesn’t do it for me” Trump opponents don’t use the “nuclear war looms” argument. Rather, most of the critics of the “save the Supreme Court” argument avoid dealing with the argument by stating flatly that you can’t trust Trump to follow through and select nominees to the Supreme Court from the list of 11 potential nominees Trump provided this spring. They argue that Trump nominees might be as bad as Clinton nominees.
To which I respond: First, you don’t really believe that, do you? And second, and more to your stated objection, you don’t have to trust him. If he breaks from that list, the GOP-led Senate will be within its rights to refuse to consider the nominee given how central the pledge was to the campaign. The court will remain at its 4-3-1 semi-static position but will not veer off the “living Constitution” cliff.
Other “save the court” rejectionists simply avert their eyes from how bad a hard left Supreme Court would be. Even some originalists, who have long defended the necessity of a Supreme Court tethered to the original design of the Constitution, have found reasons to shrug their shoulders and say we can live with a couple of Clinton appointees. The easy abandonment of these life-long positions has been, well, stunning. If a hard-left Supreme Court isn’t that bad after all, what have we been fighting for? Why the upset with court-ordered same-sex marriage, to cite just one example, if we are willing to turn the Supreme Court into an assembly line of such decrees?
In my conversation with Professor Nichols I pointed to Gov. Jerry Brown’s three appointees to the California Supreme Court and suggested — quite plausibly — that these are the sort of lawyers Secretary Clinton will nominate to join the Supreme Court if she becomes President Clinton. All three had been very highly credentialed academics when elevated. All three know very little of the world of actual law firm lawyering. All three are very, very liberal. All three will be on every Clinton short list. One was rejected by the Senate for a federal circuit court position already but will be back, his resume burnished by years on the Golden State’s highest court.
So count on the hard-left activist lawyer that is Secretary Clinton at her core to nominate such jurists as California Supreme Court Justices Goodwin Liu, Mariano Florentino Cuellar, and Leondra Kruger. What will even one such appointee (much less two or three) mean? Again, I refer you to the Nichols interview.
With hardly any effort at all I summoned up a dozen major cases where the switch on the court from 4-4-1 to 5-3-1 would be disastrous, beginning with Michigan v. Environmental Protection Agency, which was last year’s court ruling that reined in the EPA from imposing massive costs on the states without proper rule-making procedure and oversight and the Rapanos decision of 2006 which only gently (and barely) rebuked the Army Corps of Engineers from playing havoc with property rights. The prospect of a massive regulatory state with no meaningful judicial oversight at all did not deter the professor.
So I brought up Gonzales v. Carhart, a 2003 5-4 decision that upheld the federal partial birth abortion ban. Clinton’s appointee would surely vote to overturn the partial birth abortion ban if it reached the court again. (And it will with activist circuit courts everywhere populated by Obama-Clinton academics.)
Again the professor was unmoved so I referenced this term’s U.S. v. Texas, where a 4-4 split at SCOTUS left President Obama’s massive unilateralism on immigration stymied.
Then I summoned the Second Amendment, specifically the District of Columbia v. Heller decision in 2008, and McDonald v. City of Chicago in 2010, and then the First Amendment, saved by the 5-4 bell of Citizens United in 2010. All four of those cases governing immigration, guns and speech, would go the other way with a Clinton appointee confirmed. Immigration would essentially be governed by the president, Second Amendment rights would go out the door, and First Amendment rights, speech rights of the non-favored, non-elites would follow.
The professor stood fast. So I asked if he was a person of faith, and he told me he was, so I noted that the 5-4 decision in 2015’s Hobby Lobby protects religious freedom in the United States by the narrowest of threads.
“Saving religious liberty in the Hobby Lobby case, it does not outweigh handing the country to a would-be authoritarian in Donald Trump,” Professor Nichols responded. “You cannot preserve one liberty by trading off all of the other liberties, Hugh.”
So I moved on — to the Printz case in 1997, which halted the impressment of state employees into the federal service; the Lopez decision, which overturned the Gun Free School Zone Act of 1995; and United States v. Morrison, a 2000 case overturning the Violence Against Women Act. All three of those cases, defending the 10th Amendment and structural federalism, were 5-4 cases. All would be wiped away in a Clinton eye blink.
“So the very structure of the Constitution, not just the First Amendment and the Second Amendment and the Tenth Amendment, but federalism and religious liberty, they all get swept away, Tom, if the Court goes,” I argued to the professor. “And that’s forever. That’s not for four years.”
I ended my argument with Professor Nichols by pointing out that the Supreme Court has largely stayed out of political redistricting cases only by the narrowest of margins — that 5-4 vote again — and that with Clinton appointees we can bet on GOP-supervised state redistricting plans being tossed left and right in 2022. With justices of the sort Gov. Brown has appointed in California, I even expect some elegant rule to emerge that saves Democratic gerrymanders while the Republican ones get the vertical file. I’m a cynic about this, yes, but I have been teaching constitutional law for 20 years. I know how the Left plays this. You won’t be surprised to learn that Professor Nichols was unmoved.
So it is with most of the #NeverTrump folks. Point out to them that the Supreme Court is the headwaters of the rule of law and once those headwaters are poisoned with a “living Constitution” jurisprudence, that’s all we are ever going to drink, and they avert their eyes. They don’t really answer.
I don’t think the “the saving the Supreme Court isn’t enough” school of #NeverTrump die-hards has fully or accurately counted the cost of losing the court and I ask — with genuine respect and interest — that they for a moment stop denying Trump’s list and/or the Senate’s authority to enforce it, and instead fully deal with the reality of the fork in the road ahead.
If someone really believes Donald Trump means Armeggedon, of course this won’t matter. But I haven’t seen wagon trains of preppers leaving D.C. There are genuine worries among the foreign policy establishment. I know that. But the certainty of what will happen to the Supreme Court should at least receive from them an honest nod and accounting, not a deflection.
And it ought to be a central argument in every debate about the choice that is ahead in the fall. It isn’t just about Clinton-Trump. It is about the Supreme Court and who is really going to rule this country: Its people, or, to borrow from Justice Antonin Scalia, “a majority of nine unelected judges.”
This column was originally posted on WashingtonExaminer.com.