Donald Trump and the Future of the Court

The sad death of Justice Antonin Scalia reminds us that one of the most important reasons for voting for a President is Supreme Court nominations. Republican presidents in the last two decades have made substantial progress in restoring republican government by appointing judges who are substantially more faithful to implementing the constitutional design than their predecessors. Nominating Donald Trump would put all this progress at risk. Trump does not have the intellectual resources, the temperament, or the inclination to advance constitutionality fidelity.

First, he has demonstrated sheer ignorance of the our judicial and indeed constitutional system. In the debate on Thursday in defending himself from charges that he had wrongly held up his sister as a model judge, he argued that she had signed the same “bill” as Samuel Alito when they were on the appellate court together. Trump does not seem to know the difference between legislation and a judicial opinion. And he was actually wrong about the judicial decision of which he spoke. Then-Judge Alito dissociated himself from key parts of Maryanne Trump Barry’s opinion on abortion rights.

Second, Trump has commitments that make it very unlikely that he would appoint an originalist judge. Trump celebrates the Kelo decision, which permitted developers effectively to use state power to condemn land for their use. But the original meaning of the Fifth Amendment, as Ilya Somin explains, permits property to be taken for genuinely public use.

Even more worrying perhaps is Trump’s attitude to executive power. Instead of condemning the nature of Obama’s actions, he simply condemns their substance, saying that he would use executive power for better policies and President Obama has given him a lot of precedents to do so.  He obviously would not want to appoint judges who would restrain the growing Caesarism of the president and restore the executive to its primary role in domestic affairs—executing the laws Congress has laid down.

Finally, there is no evidence that Trump has advisers from the conservative legal movement—the movement that has given us Scalia, Thomas and Alito. In Supreme Court nominations, there are always pressure to choose candidates for reasons of ethnicity, gender, or political clout. Only a conservative legal brain trust pushes for excellence and sound jurisprudence.

One friend has defended Trump to me, saying that, if elected, he would be a like Nixon—a pragmatic, deal-making Republican. I see the comparisons to Nixon more in personality than in policy. But in any event, except for William Rehnquist, Nixon’s Supreme Court appointments were poor. Burger was ineffective, Blackmun moved hard left, and Powell was vacillating and without long-term influence.

And today the current of the bar flows even more strongly left than it did in Nixon’s today. Unless justices are anchored in the conservative movement, they will drift to embrace the conventional wisdom of the press and the academy. The nomination of Donald Trump would only accelerate that drift. The movement for a Court that conserves our constitutional republic would likely never recover.

Reader Discussion

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on February 29, 2016 at 23:30:10 pm

Perhaps he will nominate Bruce Cutler who so successfully represented Trump's business associate Teflon Don John Gotti and would have likely represented Big Paulie Castellano, Gotti's supervisor.

"N.Y. Builders `Dependent' On Mafia The Mafia's grip on the city's $5 billion construction industry has turned it into a cesspool of bribery, extortion, false billings, tax fraud, no-show jobs, minority fronts, bid rigging, violence and sabotage, according to a state report released in 1988. The 130-page report by the state's Organized Crime Task Force says those in the industry have "become dependent on" corruption. It describes a system in which major developers "ignore" racketeering while reaping its benefits, contractors willingly pay off mob figures to preserve labor peace and unions make themselves easy targets for mob..."

See also: https://en.wikipedia.org/wiki/Ralph_Scopo

Now we have the Governor and former US Attorney of New Jersey endorsing Trump. He would have been aware of a ton of organized crime intel about Jersey mobsters and Philadelphia mobsters that run Atlantic City. Did he "flip" Trump?

Rudy, who won the Commission Trial involving the Concrete Club has not, I believe, endorsed Trump. I wonder what he knows.

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Terry Seale
on March 01, 2016 at 04:40:31 am

"So the Senate should stop wasting everyone's time and just consent already. Time is money. And this guy -- I've known him my whole life. His family and mine would vacation together in Cabo. He's a first-rate intellect. First-rate. Believe me. And if you ever get a chance to his his daughter and my daughter in swimsuits, I'm tellin' ya....

But here's the point: All these years, the public has been getting shafted by court decisions. Why? Cuz those guys on the court, they're not very bright. The litigants, they're the smart ones; they're eating our lunch. Well, with my guy on the court, all that's gonna change. I'd do the job myself, but lawyers tell me I can't. Lawyers-- I'm tellin' ya....

So I'm delegating this court thing to my guy. And you're gonna love him; believe me. This guy's concept of Executive authority is yuuuuuge...!"

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Image of nobody.really
on March 01, 2016 at 07:46:07 am

These great Republican advisers also gave us Kennedy and O'Connor. They gave us John "Obamacare" Roberts. How many decades have we had a majority of Republican establishment judges on the Court? We got gay marriage. Now, we're supposed to dump Trump because he doesn't have the endorsement of the judge-picking establishment. Please.

We voted and voted and voted for the establishment to influence the Court. And they didn't keep their word. Now we won't vote for them. Make America Great Again!

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Image of Pensans
on March 01, 2016 at 08:30:49 am

Let's not forget that Harry "Roe v. Wade" Blackmun was appointed by a Republican. Do you think he was trying to destroy the Social Security Ponzi scheme by eliminating 25 million tax-paying workers over the next 50 years? "I don't. I just think he was influenced by the heartbreak that his daughter had to dropout of school for motherhood.

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Terry Seale
on March 01, 2016 at 13:19:20 pm

This is pretty sad. While not supporting The Trumpster, I would only say that if you wish to build in NYC, you ARE going to do business with the mob - there is no way around it. From the Laborers Union to the concrete workers / union and suppliers to the garbage haulers, the mob does as it pleases, extorts, extracts and squeezes every possible dollar out of construction projects that it can.
In short, if you wish to be a Boy Scout in the construction industry, you should probably haul your cranes out to Des Moines, Iowa.
It is not a new phenomenon - it was like that in my college days in late '60's as well. Quite sad - but a practical reality with which the industry is compelled to contend.

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Image of gabe
on March 01, 2016 at 13:20:58 pm

fuhgeddabodit!!!!! I'm tellin' ya!

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Image of gabe
on March 01, 2016 at 13:22:38 pm

Well, maybe Harry and the Missus could have taken care of the child and let little Missy continue school ,- but no, he had a judicial career to pursue.

I'm tellin' ya!

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Image of gabe
on March 01, 2016 at 23:58:58 pm

Yeah, that's pretty much the sense of it.

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Image of z9z99
on May 15, 2016 at 16:16:33 pm

Given that Donald Trump will almost certainly be the Republican nominee, would you now say that he will be the best choice in November in regards to appointing "judges who are substantially more faithful to implementing the constitutional design?"

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Jeff Hewgley
on August 28, 2016 at 06:21:47 am

Trump pushes law and order, attacks Clinton, Obama at ...

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how to speak

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.