The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Like Eugene Volokh, I agree that Trump's list of potential Supreme Court nominees is a good one. It includes many impressive people. No doubt about it. Whatever adviser compiled the list deserve some credit.
But I see little cause for rejoicing. That's because there is little reason to believe that Trump will actually stick to the list. A list released as an obvious campaign ploy is a far less compelling indication of Trump's intentions than his many years of commitment to using the power of government to censor his critics, and trampling on constitutional property rights. Just last week, he threatened to use the IRS to harass the owner of the Washington Post if that paper continues to cover him in ways he dislikes. Unlike on many other questions, on these two Trump has been remarkably consistent since long before he ran for president. Trump also plans to undermine the Constitution in numerous other ways.
When he discovers that most, if not all, the people on the list would be at odds with his longstanding commitments, a President Trump could decide to nominate other jurists, who are more in line with his own longstanding preferences. And he could easily find any number of excuses for deviating from the list.
Longstanding commitments count for more as an indication of Trump's (or any candidate's) real intentions than campaign ploys. Moreover, as co-blogger Orin Kerr points out, Trump admits that the list is not a true commitment but merely one that he plans to use as a "guide" because it is "representative of the kind of constitutional principles I value." A "plan" to use the list as a "guide" is not the same thing as a commitment to choose only people whose names appear on the list.
In sum, we should not be fooled. Trump's list is not a true commitment, and it does not outweigh a consistent record of opposing important constitutional rights and limitations on government power. There is still every reason for principled advocates of limited government to continue to oppose Trump.