The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
The most prominent name on the new list is Utah Senator Mike Lee, ironically also a leading #NeverTrump conservative. The others are all right of center state judges or lower court federal judges. Like the original list, the new one is probably intended to mollify conservatives and others who hope to see originalist judges appointed to the Supreme Court. Senator Ted Cruz has cited the expanded list as one of his principal reasons for belatedly endorsing Trump.
Regardless of what Cruz might say, the list changes nothing. List member Mike Lee is closer to the mark, issuing a statement saying that "[t]his new list does not change Sen. Lee's mind about Trump in any way whatsoever." It should not change anyone else's mind either.
Donald Trump himself has repeatedly indicated that the Supreme Court list is merely a "guide" and not binding [but see update below]. Moreover, Trump has a long history of lying about a wide range of issues, and there is no reason to think he will be more trustworthy in this case.
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.
For many years, Trump has sought to undermine freedom of speech (in order to shut down his critics) and constitutional property rights (in order to empower government to seize property for transfer to influential developers, including himself). He also wants to gut constitutional constraints on executive power, in numerous areas—going even farther in that respect than Bush and Obama. Much of this is a result of his deep authoritarian streak, exemplified by his lonstanding admiration for brutal tactics of foreign strongmen like Vladimir Putin and the Chinese communists who perpetrated the Tiananmen Square massacre.
The list of unconstitutional policies promoted by Trump increases almost daily. Just in the last two weeks, he has advocated gutting the Sixth Amendment rights of terrorism suspects (including even US citizens with no known connections to foreign terrorist groups) and outlined a maternity leave policy that includes unconstitutional sex discrimination.
Given these types of commitments, it seems likely that Trump will seek to appoint judges who will allow him to do what he wants in all these areas, not originalists or limited government conservatives who might rein them in. No president wants judges who will stand in the way of his preferred policies. It is highly unlikely that Trump will prove an exception to that pattern. It would be a mistake to expect GOP senators to stop Trump from appointing the types of judges he prefers. Few senators are profiles in courage, and it is rare for them to oppose major parts of the agenda of a president of their own party—especially not after he has won what would be a major, unexpected political victory for them.
Even worse than Trump's immediate agenda is his potential long-term impact on the Republican Party and its judicial philosophy. Trump seeks to transform the GOP into into a European-style big-government nationalist party, such as the French National Front. As prominent originalist constitutional scholar Randy Barnett points out, "puts it, "[i]f Trump takes over the Republican Party it's likely to become a right-wing nationalist party of the kind you see in Europe."
In the long run, such a party would have little use for originalism, free markets, property rights, or constitutional constraints on government power, more generally. To the contrary, all of these things are likely to be obstacles to its authoritarian nationalist agenda. And, like other parties throughout our history, a Trumpist GOP would, over time, appoint judges who are in generally line with its objectives. That's a far greater threat to constitutional originalism and limited government than even a Hillary Clinton victory is ever likely to be.
For originalists, limited-government conservatives, and libertarians who care about the judiciary, one or two distasteful Supreme Court appointments are a far lesser danger than having both major parties adopt judicial philosophies inimical to their goals. A position supported by one of the two parties can still be a major player in the judicial game, even if it suffers some setbacks. Not so if it is rejected by both. Even if Trump does end up appointing one or two conventional GOP judges to the Court (perhaps out of short-term political expediency), in the longer run Trumpism is likely to change what it means to be a conventional GOP judge in the first place.
In sum, originalists backing Trump because of his Supreme Court list are trading their principles for a mess of pottage they might never get to eat. And even if Trump does serve up a helping or two, it will not be worth the awful long-term price.
UPDATE: Contradicting several of his own earlier statements on the subject, Trump now says that "[t]his list is definitive and I will choose only from it in picking future justices of the United States Supreme Court." I had not seen this very statement when I initially wrote this post. In view of Trump's long history of deception, I don't think this commitment means much. As a certain Ted Cruz once put it, Trump is a "pathological liar." But the statement should be noted nonetheless.