Justice Kennedy's retirement marks the end of an era, but are we prepared for what comes next?
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.