The Supreme Court will be one of the topics discussed at the final presidential debate of this election, moderated by Fox News anchor Chris Wallace on October 19. Supreme Court reporters and legal experts have been explaining the significance of the court throughout the election season, because of the vacancy left by the death of Justice Antonin Scalia in February and the implications for the ideological direction of the court stemming from the election of a new president.
- GOP Obstruction Has Left A Vacancy On The Court For An Unprecedented Amount Of Time
- Persistent Court Vacancy Has Influenced At Least Three Pivotal Decisions
- The Next President Will Likely Determine The Court’s Ideology For Decades
- Trump’s Potential Supreme Court Picks Signal Desire For Extreme Right-Wing Court
- Even Conservative Legal Scholars Are Warning Against A Trump Presidency
Supreme Court Will Be Discussed At The Final Presidential Debate
Moderator Chris Wallace Of Fox News Announced Topics For Final Presidential Debate. On October 12, the moderator of the third presidential debate, Fox News host Chris Wallace, announced six topics to be discussed at the October 19 debate -- including the Supreme Court. [Commission on Presidential Debates, 10/12/16]
GOP Senate Broke The Record For Obstruction Of A Supreme Court Nominee -- Nearly Three Months Ago. Law professor Jeffrey Rosen noted in a July 20 op-ed in The New York Times that Republicans had obstructed President Obama’s nomination of Merrick Garland for 126 days, breaking the previous record set in 1916 when it took 125 days for Justice Louis Brandeis to be confirmed. Discussing Garland’s judicial record and recounting bipartisan praise Garland has received in the past, Rosen wrote, “If Judge Garland is confirmed, he could be just what America needs to help bring us together at a time when justices and citizens of different perspectives have never seemed so far apart.” [The New York Times, 7/20/16]
Garland Has Not Even Been Afforded A Public Hearing, Contrary To Senate Tradition. According to the Congressional Research Service (CRS), of more than 40 Supreme Court nominations made since the Senate Judiciary Committee began the practice of holding public hearings to question nominees in 1939, every nominee who was not withdrawn by the president received a public hearing or vote by the full Senate. The Senate confirmed Justices James Byrnes and Harold Burton without holding public hearings in 1941 and 1945, respectively. The Judiciary Committee took no action on initial nominations of Justices John Harlan II and John Roberts, but both were re-nominated in short order, given public hearings, and confirmed by the Senate. In 2005, President George W. Bush withdrew his nomination of Harriet Miers before hearings could be held. In every other case, the nominee received one or more public hearings in the Judiciary Committee. [Supreme Court Nominations, 1789 - 2009: Actions by the Senate, the Judiciary Committee, and the President, Congressional Research Service, 5/13/09]
New York University Law Review: Garland Obstruction Is Unprecedented In U.S. History. A review of all Supreme Court nominations in U.S. history by two law professors found that “in every one of the 103 earlier Supreme Court vacancies ... the president was able to both nominate and appoint a replacement with the Senate’s advice and consent,” according to The New York Times:
That categorical stance is new in the nation’s history, the professors, Robin Bradley Kar and Jason Mazzone, wrote in a study published online by The New York University Law Review. The Senate has never before transferred a president’s appointment power in comparable circumstances to an unknown successor, they said — an argument that many Democratic lawmakers have also made.
In every one of the 103 earlier Supreme Court vacancies, the professors wrote, the president was able to both nominate and appoint a replacement with the Senate’s advice and consent. This did not always happen on the first try, they wrote, but it always happened.
“There really is something unique about the position Republican senators are taking with respect to the Scalia vacancy,” said Professor Mazzone, who teaches at the University of Illinois.
“You really cannot find any single comparable case,” he said. “We really did not find any precedent for the idea, notwithstanding the Senate’s very broad powers in this area, that a sitting president could be denied outright the authority to offer up a nominee who would receive evaluation through normal Senate processes.” [The New York Times, 6/14/16]
USA Today Editorial Board: “The Republican-Led Senate Sure Knows How To Make History, But Not In A Good Way.” During the beginning of the Supreme Court’s new term, USA Today published an editorial explaining that Republicans’ obstruction of Garland and other Obama judicial nominations had become unprecedented and noting that arguments by conservatives against confirming Garland were “wearing thin”:
The Republican-led Senate sure knows how to make history, but not in a good way. By leaving town Sept. 28 without acting on the nomination of Merrick Garland to the Supreme Court, it has left a nominee hanging for an unprecedented six-and-a-half-months without so much as a hearing -- and left the Supreme Court limping along one justice short and vulnerable to more tie votes.
Obama’s choice of the highly regarded Garland, 63, who heads the powerful D.C. Circuit Court of Appeals and is well within the broad judicial mainstream, did not change their minds. However, their mantra — that the pick belongs to the voters who choose the next president — is wearing thin. Sen. Jeff Flake, R-Ariz., recently told the The Daily Beast: "Nobody really believes that, because if this were the last year of a Republican presidency, nobody would say that.”
The problem is simple: Senate Republicans are shirking their constitutional responsibility to advise and consent on judicial nominations. Americans deserve enough federal judges to hear their disputes and a Supreme Court with a full complement of nine justices to rule on national issues. [USA Today, 10/6/16]
Several High-Profile Cases Resulted In Split Decisions Or Unusual Actions Because Of The Vacancy. Since the death of Justice Antonin Scalia in February, the Supreme Court has issued several high-profile decisions that were directly impacted by the court vacancy. The New York Times outlined exactly how this year’s decisions related to labor unions, immigration, and contraception were influenced because of an eight-justice court. In March, the court announced a 4-4 split vote in the public sector union case Friedrichs v. California Teachers Association, upholding a decades-old practice that allows the union to collect a small “agency fee” from nonmembers who benefit from the union's collective bargaining efforts but don't pay full membership dues. In May, the court declined to issue a decision in Zubik v. Burwell, a case examining religious groups’ legal challenge to the opt-out process for the Affordable Care Act’s contraception mandate, sending the case back to a federal appeals court for further consideration. In June, the court apparently deadlocked 4-4 in United States v. Texas, keeping in place a temporary injunction blocking an executive action by the Obama administration facilitating work authorization for millions of undocumented immigrants whose deportation was deferred. In October, the eight-justice court neglected to reconsider the case, effectively leaving the injunction in place. [Media Matters, 10/7/16; The New York Times, 6/27/16]
The New Yorker’s Amy Davidson: An Eight-Justice Court May Be “Fracturing Into Ineffectuality.” Following the court’s March 4-4 split in the Friedrichs case, New Yorker writer Amy Davidson wrote that the court “may be not only splitting but fracturing into ineffectuality,” mirroring “the rest of the American political landscape.” Davidson explained that a tied decision is “almost as if no one has decided, at least not definitively,” and suggested that the inability to resolve differing interpretations of the law could signal less cohesiveness as a nation. From the article:
More than that, when the Supreme Court ties, it’s not as though the lower court becomes its fully empowered proxy. Often enough, it’s almost as if no one has decided, at least not definitively. A tie that lets the ruling under appeal stand does not have the force of precedent, and it does not necessarily have any force outside the particular circuit in question. This can get confusing.
The Senate Republicans’ indifference to the crippling of the Court is, at the very least, consistent with the more extreme rhetoric of the small-government movement: maybe it’s better when nothing works in Washington. Conceding to that view would also be an abandonment of a common project that the United States has been working on for a couple of centuries. The different parts of the country have, in a general sense, been speaking to one another less and less. But sometimes they have to, in front of the Supreme Court. Those conversations shouldn’t become empty. [The New Yorker, 4/1/16]
NY Times Editorial: Eight-Justice Court Has Split 4-4 In Several Cases, Putting Off “Any Final Judgment On Lawsuits That Affect Millions Of Americans.” In an October 3 editorial, the New York Times editorial board blasted the ongoing obstruction of Garland’s nomination as “entirely contrary to the workings of a constitutional government,” and pointed to several high-profile split decisions “that affect millions of Americans.” The editorial explained that “the inability to issue precedent-setting rulings” appears to have influenced the court’s decisions for the new term as well, leading “the justices to grant review on fewer new cases than usual”:
Meanwhile, the eight justices have split evenly in several major cases, which puts off any final judgment on lawsuits that affect millions of Americans. These include challenges to the right of public-sector unions to charge collective bargaining fees to nonmembers, to religious exemptions from the Affordable Care Act’s birth-control mandate and to the legality of President Obama’s executive actions on immigration.
The inability to issue precedent-setting rulings appears to have led the justices to grant review on fewer new cases than usual. So far, the new term’s docket includes cases involving, among other things, the use of race in redrawing state legislative districts, a free-speech challenge to a federal law that denies protection to disparaging trademarks, a challenge to the secrecy of jury deliberations when there is evidence that a juror was racially biased against the defendant and Texas’s unscientific standard for determining whether someone is intellectually disabled enough to be spared from execution.
Meanwhile, some of the nation’s most pressing legal issues are awaiting substantive rulings by the court. Most urgent among these are lawsuits against the efforts of Republican legislatures to suppress voting by minorities, young people and others who tend to vote Democratic. [The New York Times, 10/3/16]
Constitutional Accountability Center: “Harmful And Chaotic Scenario” Of Extended Vacancy Prevents Court From Providing “Binding Law For The Entire Country.” In a blog post published days after Scalia’s death in response to Senate Republican promises to obstruct any nominee from President Obama, Brianne Gorod, chief counsel at the legal think tank Constitutional Accountability Center, explained that a persistent court vacancy would create “a harmful and chaotic scenario” in which the court “cannot issue a decision that provides binding law for the whole country.” From the post (emphasis added):
The consequences of the Supreme Court being without all nine justices for so long can hardly be overstated. Most significant, a long-standing vacancy would compromise the Court’s ability to perform one of its most important functions, that is, establishing a uniform rule of law for the entire country.
There’s no question that on this sharply divided Court, the potential for 4-4 decisions will be strong. When that happens, the Court cannot resolve these conflicts because it cannot establish a precedented decision. When the Court decides a case 4-4, the ruling of the court below is affirmed, but there is no binding decision of the Supreme Court that governs the rest of the nation. As a result, vital questions about our nation’s laws and the Constitution will be left unanswered. Sometimes these questions may be in high profile cases touching on such issues as the environment or religion; other times they may be in cases that don’t normally get much attention, but are nonetheless important (for example, cases involving whether individuals can sue in court when their rights under federal law are violated).
The practical result is simple and harmful: people will be subjected to different rules in different parts of the country. For individuals, these different rules may be unjust and confusing. For businesses, these different rules may make it exceedingly difficult to operate in multiple parts of the country. And, again, if some Republicans have their way, the Court will be unable to resolve these conflicts for at least the majority of two of its Terms. That result undermines the rule of law and is undeniably bad for the country, whatever one’s ideology. It is, in short, simply unacceptable. [The Huffington Post, 2/16/16]
Toobin In The New Yorker: “The Hopes For A Liberal Court Will Begin -- Or, Just As Certainly, End -- With The Results On Election Day.” Jeffrey Toobin, a legal analyst at The New Yorker and CNN, wrote that the current presidential race will determine both the immediate makeup and long-term ideological trajectory of the Supreme Court. According to Toobin, a Democratic president in 2017 would lead to a liberal ideological shift on the court that hasn’t been seen “in two generations,” and could signal new rulings on voting rights, campaign finance regulation, and other priorities on a “liberal wish list”:
The future of the Supreme Court always depends principally on the outcome of Presidential elections; this year’s race will have a nearly immediate impact on the fate of the Court. But the changes may only begin with a replacement for Scalia.
Liberals on the Court have spent decades in a defensive crouch, trying to fend off challenges to treasured precedents in areas such as abortion rights and affirmative action. But if they were a majority they would have the chance to go after some conservative landmarks.
For the first time in decades, there is now a realistic chance that the Supreme Court will become an engine of progressive change rather than an obstacle to it. “Liberals in the academy are now devising constitutional theories with an eye on the composition of the Court,” Justin Driver said. The hopes for a liberal Court will begin—or, just as certainly, end—with the results on Election Day. [The New Yorker, 10/3/16]
NY Times: Election Could Lead To Majority Of Justices Being Democratic Appointees “For The First Time In Almost 50 Years.” In a profile of Chief Justice John Roberts, The New York Times pointed out that Roberts’ leadership could shift significantly with the addition of a new justice -- whether it is Garland, a judge appointed by Democratic nominee Hillary Clinton, or a conservative appointee from Republican nominee Donald Trump. As the article explained:
In Chief Justice John G. Roberts Jr.’s 11 years on the Supreme Court, his unfolding legacy has been marked by a debate over whether his very occasional liberal votes in major cases were the acts of a statesman devoted to his institution, a traitor to his principles or the legal umpire he said he aspired to be at his confirmation hearings.
This election could settle that debate.
Were a liberal to replace Justice Scalia — whether it was President Obama’s pick, Judge Merrick B. Garland, or someone named by Hillary Clinton should she win the presidency — a majority of the justices would be Democratic appointees for the first time in almost 50 years. That would open a new chapter at the court, and leave Chief Justice Roberts, a Republican appointee with a generally conservative voting record, in the minority in many closely divided cases. And it could force him to choose between becoming a marginal figure or concluding that a new era on his court requires a new kind of leadership — and a move to the left. [The New York Times, 9/25/16]
CBS News: Election’s “Impact Could Be Huge” For The Supreme Court. In a report prior to the death of Justice Scalia, CBS News spoke with legal experts who identified four potential court vacancies to be filled by the next president -- Scalia, thought to be approaching the age of retirement at the time, as well as Justice Ruth Bader Ginsburg, Justice Anthony Kennedy, and Justice Stephen Breyer -- and concluded that the presidential election could have a “huge” impact on the ideology of the court:
In the next few years, the Supreme Court may face as many as four vacancies as some of the justices age or enter retirement. That means the outcome of November's elections could be critical in determining the court's future composition.
“I think there's no denying the next president is likely to have a very significant impact on the court,” Stephen Wermiel, a constitutional law professor at American University, said.
Of course, the Senate also hangs in the balance and whichever party holds the majority will also be key. Even so, if a Democrat is elected in November, and the party takes back the Senate as well, it still won't be so easy to put a liberal on the court. Republicans could filibuster any Supreme Court nominees that she might appoint.
A more conservative court could also wield significant power. Right now, Wermiel said there are probably four votes to overturn Roe v. Wade or to abolish affirmative action. If they get a fifth conservative vote, he said, he doesn't think the court would hesitate to review those issues.
“Depending on who is replaced and by what president, the impact could be huge,” he said. [CBSNews.com, 1/5/16]
People For The American Way Senior Fellow Elliot Mincberg: “New Trump Supreme Court List Makes Even Clearer The Dangers Of A Trump Court.” In a piece at The Huffington Post, Elliot Mincberg of the progressive legal group People For The American Way (PFAW) explained that Trump’s short list of potential Supreme Court nominees, which he expanded to include 21 total picks in September, includes a number of judges with “truly frightening” far-right records. As Mincberg wrote (emphasis added):
Much has already been written about the dangers that a Supreme Court, with even one or two Trump-appointed justices, would pose to all our rights and liberties. Trump’s latest list of ten more possible Court nominees makes that even more clear. In making his announcement last Friday, Trump proclaimed he was using the late Justice Scalia as a model for his picks, delighting the far Right. A quick look at these potential nominees’ records shows that they would, in fact, swing the court far to the right, maybe even further than Justice Scalia, on issues like the environment, voting rights, money in politics, consumer rights, gun violence, LGBT and reproductive rights, and more. For the sake of all our rights and liberties, Trump cannot be given the opportunity to nominate Supreme Court justices.
Perhaps the best summary of Trump’s new list was offered by Carrie Severino of the right-wing Judicial Crisis Network. Trump “continues to take unprecedented steps,” she proclaimed, to show that he would nominate people “like Scalia, Thomas, and Alito” to the Supreme Court. Severino and Trump are clearly hoping that this will shore up Trump’s support on the far Right. In fact, it has already helped secure Trump’s endorsement by former rival and right-wing Senator Ted Cruz. But for all other Americans, the prospect of Trump nominees to the Supreme Court is truly frightening. [The Huffington Post, 9/26/16]
Daily Beast’s Jay Michaelson: Trump SCOTUS Pick “Would Kill The ‘Right To Remain Silent’ Warning.” The Daily Beast’s legal affairs columnist, Jay Michaelson, explained in August that Judge William Pryor, one of the 11 judges on Trump’s original short list, is a “fierce ideologue.” Pryor has referred to Roe v. Wade as “the worst abomination in the history of constitutional law” and argued that Roe created “out of thin air a constitutional right to murder an unborn child.” He has also called the decision in Miranda v. Arizona (the case establishing the legal requirement that police must inform a suspect of his or her constitutional rights at the time of arrest) one of the “worst examples of judicial activism.” As Michaelson wrote:
Pryor is also (in-)famous for a 2000 speech he gave (to the Heritage Foundation, incidentally) in which he called Miranda v. Arizona one of the two “worst examples of judicial activism.” (The other, of course, was Roe.) If you’ve ever watched a cop series on TV, you know Miranda—that’s the case that required police to tell arrestees “you have the right to remain silent.”
In Pryor’s world, those warnings wouldn’t exist.
Then there’s the time in 2002 Pryor argued before the Supreme Court that cuffing a prisoner to a hitching post in the hot Alabama sun, with his hands tied over his head, was not “cruel and unusual punishment.” The Court disagreed, noting “obvious cruelty inherent in the practice.” [The Daily Beast, 8/11/16]
Slate’s Dahlia Lithwick: Trump’s SCOTUS Short List “Is Especially Terrifying For Women.” After Trump released his first Supreme Court short list in May, Slate courts reporter Dahlia Lithwick explained that judges on the list were exclusively white, mostly men, “extremely young,” and that most have “impeccable conservative credentials.” Beyond listing mostly male judges, Trump also included “none” who have “evinced any interest in protecting a woman’s right to choose.” From the May 20 Slate piece:
You know what’s news? Donald Trump’s shortlist of Supreme Court nominees. The list shows—maybe even more effectively than the dissents in Hobby Lobby—why women’s reproductive freedom is in real peril, because it shows Trump’s eagerness to seat justices who will do away with the right to choose. Some of the judges on Trump’s wish list are well-known; some are virtually unknown; one has openly mocked Trump on Twitter. But none of them has evinced any interest in protecting a woman’s right to choose. [Slate, 5/20/16]
Notable Conservative Legal Scholars Formed “Originalists Against Trump” Group. A group of 45 prominent conservative law professors, practicing lawyers, and other legal experts wrote an open letter opposing Trump. The group of scholars -- who all claim to ascribe to the conservative legal doctrine of originalism, as Scalia did -- wrote that they believed Trump would not adhere to conservative judicial principles in his nominations or actions as president:
Trump’s long record of statements and conduct, in his campaign and in his business career, have shown him indifferent or hostile to the Constitution’s basic features—including a government of limited powers, an independent judiciary, religious liberty, freedom of speech, and due process of law. [OriginalistsAgaintsTrump.wordpress.com, accessed 10/18/16; The Huffington Post, 10/17/16]
Libertarian Legal Analyst Shikha Dalmia: “Trump Will Torch The Supreme Court.” Shikha Dalmia, a senior analyst at the libertarian think tank The Reason Foundation, recently argued that Trump’s “temperamental and character flaws are too great to be offset by a good court,” that he is not likely to adhere to his short list of potential nominees, and that a “Trump presidency will have a transformative effect on the GOP” that would endanger the party’s professed constitutional ideology. Dalmia concluded that “a Trump presidency is likely to be a rolling wave of one manufactured constitutional crisis after another,” and noted that a party led by Trump would have “no use for federalism, separation of powers, and individual rights.” From Dalmia’s post (emphasis added):
Trump would be FDR on steroids. He savaged Judge Gonzalo Curiel's “Mexican” heritage because the judge didn't dismiss the case against Trump University. If something as low stakes as this can set Trump off, imagine what he'll do if the Supreme Court takes up a challenge to a signature issue of his presidency? A Trump presidency is likely to be a rolling wave of one manufactured constitutional crisis after another.
That, however, isn't likely to be President Trump's worst damage.
To the extent that Trump has a vision for the GOP, it is along the lines of Europe-style workers' parties (his term) such as France's National Front. This is an authoritarian, nationalistic, right-wing party whose main goal is to aggressively realign the economy around the interest of domestic workers by fanning the fires of xenophobia and protectionism. George Mason University's Ilya Somin points out that such a party will have no use for federalism, separation of powers, and individual rights. To the contrary, such commitments are likely to be an impediment to its goals.
Voting for Trump out of concern for the Supreme Court and originalism then is like handing the keys of your church to an arsonist clutching a can of gasoline in one hand and matches in the other—and hoping that somehow he'd spare the inner sanctum and the holy book. He won't. [Reason.com, 10/12/16]
Conservative Law Professor Ilya Somin: “Donald Trump’s Expanded Supreme Court List Changes Nothing.” After the Trump campaign released its expanded Supreme Court nominee short list in September, bringing the total number of potential picks to 21, conservative legal scholar Ilya Somin wrote that the new list is “probably … a campaign ploy.” Somin argued that Trump’s espoused views about the law ought to carry more weight with voters than any symbolic list of judges:
On Friday, Donald Trump issued an expanded list of potential Supreme Court nominees, adding ten more names to the list of eleven options he put out back in May. Whether you like the names on the expanded list or not, it does not change any of the reasons why Trump is a menace to the Constitution. It also does nothing to change the reality that Trump’s longterm agenda is deeply inimical to originalism, limited government, and efforts to ensure that the federal judiciary will protect those values.
But the problem goes far beyond Trump’s dishonesty. It is also far worse than mere ignorance about constitutional issues. Though Trump is indeed ignorant about the Constitution, ignorance does not imply indifference. To the contrary, he has a wide-ranging repressive agenda that would undermine the Constitution at many points. And much of that agenda is an outgrowth of views he has consistently held since long before the 2016 campaign. Unlike the Supreme Court list, it is probably not just a campaign ploy. [The Washington Post, Volokh Conspiracy, 9/24/16]
National Review’s Ian Tuttle: “Trump Could Be More Of A Threat To The Constitution” Than A Liberal Court Under A Clinton Administration. National Review writer Ian Tuttle concluded that “weighed in balance, Donald Trump could be more of a threat to the Constitution than a Hillary Clinton-appointed Supreme Court liberal majority.” Tuttle argued that while, in his view, a liberal court would be a loss, Trump cannot be trusted to adhere to conservative principles in judicial appointments and does not appear to have a firm grasp of how the judicial system works (emphasis added):
What Trump supporters refuse to do is weigh it against another clear and present danger to our constitutional order: a President Donald J. Trump.
Trump’s potential abuses are numerous — and, unlike most presidential hopefuls, widely advertised. He has suggested that he will prosecute journalists who write unfavorable stories about his administration. He is open to “shutting down” parts of the Internet. (Might this be a free-speech violation? Only “foolish people” would suggest that.) The prospective commander-in-chief has declared that he would force American troops to commit war crimes. And he has said that he has no qualms about using executive orders much like President Obama has done (only Trump’s will be “better”). Trump’s dismissiveness toward the Constitution is in excess of anything Barack Obama displayed in 2008 or 2012.
Moreover, the only real insight we have into Donald Trump’s judicial philosophy (such as it is) is from the week he spent savaging Gonzalo Curiel, the federal judge who is presiding over two lawsuits against Trump University. The takeaway from that deplorable episode was that, as with everything else, Donald Trump likes judges who like Donald Trump; he wanted a judge who would put his interests above the law. What reason is there to believe that he would behave differently as president?
Nonetheless, those who cite the Supreme Court as a compelling reason to vote for Trump are of the befuddling opinion that the same man who has demonstrated willful ignorance of the Constitution, who has promised to subvert the Constitution, and whose dealings with the judiciary demonstrate contempt for the Constitution, is the man who will save it. [National Review, 8/4/16]
Libertarian And Conservative Legal Experts: Trump Is “Beyond The Pale” And Can’t Be Trusted To Make Quality SCOTUS Nominations. A roundup of libertarian and conservative legal experts’ reactions to the question, “Is SCOTUS a good reason to support Trump?” on The Reason Foundation’s Hit & Run blog included multiple condemnations of Trump’s legal views and behavior throughout his campaign. Conservative law professor Jonathan Adler concluded that Trump was “beyond the pale” and said there’s “no guarantee Trump’s nominees will be any good anyway.” Right-wing legal scholar Timothy Sandefur wrote that Trump’s short list is “a pie-crust promise, easily made, easily broken,” and that “Trump is ignorant of virtually all of the critical legal disputes of the day, and has no idea which judges are best positioned to resolve those disputes.” [Reason.com, Hit & Run, 8/1/16]
Conservative Law Scholar Alan Gura: Trump Is “A Proud Ignoramous And Conspiracy Theorist” Who “Plays Footsie With Racists And Anti-Semites” And SCOTUS “Would Be Among The Least Of Our Concerns Under His Regime.” In the same Reason.com blog post, Georgetown University Law Center professor Alan Gura concluded that preserving the Supreme Court’s conservative ideology was not a good enough reason to vote for a “fascist caudillo, an autarkist, a proud ignoramous and conspiracy theorist … who plays footsie with racists and anti-Semites and might well be a Russian agent.” From the blog post:
Donald Trump has effectively identified the horrific prospect of Hillary Clinton appointing at least one and perhaps several Supreme Court justices, to say nothing of the lower courts. But shall we entrust that task to an insecure lunatic, a fascist caudillo, an autarkist, a proud ignoramous (sic) and conspiracy theorist, the aspiring leader of a “Workers' Party” who plays footsie with racists and anti-Semites and might well be a Russian agent? I have no illusions about what Hillary would do to the federal bench. Sad! But there is something deeply contradictory about the notion of electing a power-hungry strongman on the theory that he'll appoint judges that respect and enforce constitutional limits on government. Did Hugo Chavez appoint great judges? Did Putin, Mussolini, or Erdogan? Would it have mattered had they sort-of kinda suggested that they would?
As much as I care about the courts, worrying about jurisprudential doctrine is a luxury for people living under basically free and stable governments, for people who have access to food and toilet paper. And absolutely nothing in Trump's history suggests that he'd honor his proposed judge list or otherwise pick decent judges, while each of his proclamations indicates that the Supreme Court would be among the least of our concerns under his regime. [Reason.com, Hit & Run, 8/1/16]
Conservative Lawyers Warned Against Allowing Trump To Pick Supreme Court Justices. As the Trump campaign prepared to release its May short list of potential Supreme Court nominees, conservative legal scholars expressed concern that Trump would “nominate cronies who would rubber-stamp whatever Trump does” and that he was was incapable of making “sound judicial selections.” [Media Matters, 5/10/16]
Volokh Conspiracy’s David Bernstein On Trump: “I Wouldn’t Be Surprised If He Thinks The U.S. Constitution Is A Luxury Yacht.” In a February column at The Volokh Conspiracy, conservative law professor David Bernstein cautioned Republicans against electing Trump and thereby allowing him to appoint future Supreme Court nominees. Bernstein wrote:
Do you really want Donald Trump choosing the next Supreme Court justice? By all indications Trump hasn’t given a moment’s thought to the Constitution. I wouldn’t be surprised if he thinks the U.S. Constitution is a luxury yacht.
Five-to-four Supreme Court opinions protecting First and Second Amendment rights, limiting Congress’s regulatory power under the Commerce Clause, limiting racial preferences, preserving the states’ constitutional status, and many more are in jeopardy. Do Republican voters really believe that Trump is the right man for the occasion? [The Washington Post, Volokh Conspiracy, 2/15/16]