Don't Be Fooled By Trump's SCOTUS Short List
There's no reason to believe that Trump will nominate a principled constitutionalist to the Supreme Court.
Today Donald Trump released a list of 11 federal and state judges that he says he will consider nominating to the U.S. Supreme Court if he is elected president. Here's the list:
- Judge Steven M. Colloton of the U.S. Court of Appeals for the 8th Circuit
- Judge Raymond W. Gruender of the U.S. Court of Appeals for the 8th Circuit
- Judge Thomas M. Hardiman of the U.S. Court of Appeals for the 3rd Circuit
- Judge Raymond M. Kethledge of the U.S. Court of Appeals for the 6th Circuit
- Judge William H. Pryor Jr. of the U.S. Court of Appeals for the 11th Circuit
- Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit
- Justice Allison H. Eid of the Colorado Supreme Court
- Justice Joan Larsen of the Michigan Supreme Court
- Associate Chief Justice Thomas Lee of the Utah Supreme Court
- Justice David Stras of the Minnesota Supreme Court
- Justice Don Willett of the Texas Supreme Court
If that particular batch of names happens to sound familiar, that's because it corresponds so closely with the SCOTUS wish list released last month by the Heritage Foundation, an influential conservative think tank with deep ties to the Republican Party. Somebody at the Trump campaign is clearly listening to the folks at Heritage. It's perhaps the clearest sign yet that Trump is attempting to play nice with the GOP establishment.
What to make of Trump's list? For starters, it features a number of highly respected conservative jurists, some of whom are basically seen as rock stars within the ranks of the Federalist Society and the broader conservative legal movement, such as Judge Diane Sykes and Judge William Pryor. For legal conservatives, this is a respectable list.
There's also one name on Trump's list that is sure to make libertarians sit up and take notice. That name is Justice Don Willett, a highly popular figure in libertarian legal circles thanks to his concurring opinion in the 2015 case of Patel v. Texas Department of Licensing and Regulation, in which the Texas Supreme Court struck down a truly ridiculous occupational licensing scheme. "This case is fundamentally about the American Dream and the unalienable human right to pursue happiness without curtsying to government on bended knee," Willett wrote. "It is about whether government can connive with rent-seeking factions to ration liberty unrestrained, and whether judges must submissively uphold even the most risible encroachments." (I'm happy to note that Willett cited my book in his opinion.)
But the real question here is not whether Trump's SCOTUS list will impress conservatives (it will). The real question is why any conservative (or any libertarian for that matter) would ever trust Trump to name a principled constitutionalist to the Supreme Court in the first place. Keep in mind that Trump has shown nothing but contempt for the idea of constitutionally limited government throughout this election cycle. He's trashed the Bill of Rights, trashed the 14th Amendment, trashed religious liberty, trashed free speech, and trashed the idea of placing limits on executive power during both wartime and peacetime. As George Washington University law professor Orin Kerr recently observed, "If Trump has a choice between an originalist conservative with sterling credentials who would often block Trump, and a buddy of his who hasn't read the Constitution but would let Trump do what he wants, who do you think Trump would pick?"
If you've paid any serious attention to Trump and his agenda, you already know the answer to that.
Related: Donald Trump vs. Clarence Thomas