Can Trump Be Trusted on Supreme Court Appointments?

The GOP candidate releases an expanded of potential SCOTUS picks.

Todd Krainin

In May Donald Trump released a list featuring the names of 11 federal and state judges that he said he would consider nominating to the U.S. Supreme Court if he's elected president. On Friday Trump expanded that list, adding 10 more names to the mix. According to Trump, "this list is definitive and I will choose only from it in picking future Justices of the United States Supreme Court."

From the standpoint of the conservative legal movement, it's a solid list. It's also not bad from the standpoint of the libertarian legal movement, as it contains such names as 7th Circuit Judge Diane Sykes, the author of an important opinion protecting the First Amendment right to record police officers in public; 10th Circuit Judge Neil Gorsuch, the author of a recent dissent attacking judicial deference to government regulatory agencies; and Texas Supreme Court Justice Don Willett, the author of what I've described as "one of the most libertarian legal decisions I've ever read."

But since this is Donald Trump we're discussing here, the real issue is not the caliber of the list. The real issue is whether or not Trump can be trusted to keep his word and actually stick to the list if he's elected. Can Trump be trusted? Let me put it this way. Throughout U.S. history, presidents have overwhelmingly nominated the sort of justices that they think will vote to uphold their respective agendas. Thus Franklin Roosevelt nominated friends of the New Deal while George W. Bush nominated friends of the so-called war on terror.

What is Trump's agenda? Among other things, Trump has come out in favor of the government censoring the internet, shuttering houses of worship, depriving religious minorities of due process and equal protection, forcibly confiscating private property, gutting libel laws in order to make it easier to silence journalists, ordering U.S. forces to commit torture and other war crimes, and imposing a nationwide "stop and frisk" scheme in order to "take the gun away." For those of you keeping score at home, that means that Trump—at a minimum—has endorsed government infringements on the principles contained in the First Amendment, the Second Amendment, the Fifth Amendment, the Eighth Amendment, the 10th Amendment, and the constitutional doctrine of limited and enumerated executive powers.

Now consider Trump's SCOTUS list. The most impressive names on that list are all judges who have distinguished themselves by voting to enforce constitutional and/or statutory limits against illegitimate and overreaching government power. Is Trump likely to nominate the sort of justices who will enforce such limits against Trump's own power? I sure wouldn't bet on that.

Related: Is SCOTUS a Good Reason to Support Trump? Libertarian and Conservative Legal Experts Weigh In

Comments

[Chipper Morning Wood]

Betteridge says no. Next question.

[Zeb]

No. No one can be trusted.

[tarran]

No.

Here are some other questions of similar vein:

* "Is the Pope a Baptist?"
* "Do streets stay dry when a downpour falls on them?"
* "Do witches weigh more than a duck?"

[bassjoe]

1. He might be a SECRET Baptist.

2. If you put a plastic sheet on them.

3. Depends on the scale one uses.

[flye]

What is Trump's agenda?

To say populist things in order to get elected. Beyond that, who the hell knows.

[Hyperion]

+1 honest and unbiased answer

[bassjoe]

I think "looking out for his brand" would also be acceptable.

[Ayn Random Variation]

Maybe not vs definitely not. I'll roll the dice with maybe not.

[WTF]

^This. Hillary has already laid out for us the ways in which she seeks to violate the constitution through her SCOTUS picks.

[Ship of Theseus]

definitely not vs definitely not. Cute that anyone is pretending otherwise.

[DEATFBIRSECIA]

So if he goes by his agenda, rather than that list we can expect...

Giuliani for the win!

[Agile Cyborg]

The police-state president will empower the vast machinery of the state in whichever capacity it so deems is lacking- which will be in every fucking direction its bloody erection wishes to penetrate ever more deeply and violently.

Thanks to the goddamn social conservatives and socialists for binding us naked and bewildered onto the bureaucratic troughs of impending horror.

[You Sound Like a Prog (MJG)]

Well, we can also ask if Trump really cares about those issues / cares if they are protected by the Supreme Court at some future date. Will he be praised for his Tough Policies, and praised for his SC picks? Maybe that's what he cares about. And if his justices vote against his policies, why is that on him? That's the fault of loser judges with weak opinions.

Really, who the hell knows.

[Hyperion]

More so than Hillary. We already know what sort of leftist scum Hillary will appoint. With Trump, it's an unknown. I'd go with the unknown since there may be some greater than zero percent chance that unknown entity will appoint someone good, as opposed to zero with Hillary.

[Louis Lucky]

I certainly do not trust Trump to do or not do anything. But I think I can absolutely trust Clinton to keep her promises of upholding the racketeering, stealing, lying, departmental incompetence, illegality, and war-mongering of the current administration.

[Agile Cyborg]

Liberty will die brutally crushed under weight of morality, justice, and apathy in the place of its bold origin.

[Suthenboy]

Trump may not be trustworthy on the kinds of justices he says he will appoint.

Cankles can be trusted with certainty on the kinds of justices she says she will appoint.

Which is worse? You get three guesses.

[DenverJ]

Hitler?
Stalin?
Mao?

[Brochettaward]

Trusted in what sense? Trump's picks are going to be better than Hillary's on the first and second amendments. She would turn them both into dead letters and has publicly championed the fact. She believes every amendment is open to "reasonable regulation." Which basically means she doesn't believe in rights at all.

What is Trump's agenda? Among other things, Trump has come out in favor of the government censoring the internet, shuttering houses of worship, depriving religious minorities of due process and equal protection, forcibly confiscating private property, gutting libel laws in order to make it easier to silence journalists, ordering U.S. forces to commit torture and other war crimes, and imposing a nationwide "stop and frisk" scheme in order to "take the gun away."

Color me skeptical that even the biggest boot licking judge Trump could find would vote for most of this list. Stop and frisk? He could find conservatives to sign off on that easily enough. Same with 'torture.'

It's not at all clear that Trump is going to actually do any of those things, and he can't do most alone, either. Hillary very well could/probably will get her 'reasonable' gun control and campaign finance laws.

This is a defense of Trump. A progressive Supreme Court is far worse long term.

[Brett L]

I certainly don't think we should look forward to him making Kelo a litmus issue, unless the prospective justice would have voted for it.

[waffles]

If the alternative is Hillary then yeah I trust Trump to make appointments less likely to shit all over the constitution than his opponent. If you have a better idea let me know.

[bassjoe]

No. Next question.

[sloopyinTEXAS]

What is Trump's agenda? Among other things, Trump has come out in favor of the government censoring the internet

He wants to shut down ISIS websites. I'm not for that but is it really as bad as gutting the freedom of the press and for overturning CU so people can't make movies about political candidates with their own money? I'm thinking not.

, shuttering houses of worship,

He said that a year ago and has tempered it. I'm also curious if that is much worse than telling churches they must be forced to hire people whose lifestyle they do not approve of, as his Democrat opponent believes.

depriving religious minorities of due process and equal protection

What, like the current admin does with their illegal wiretapping programs and secret courts issuing subpoenas that deprive people from even seeing counsel or family members? That bad, or are you just referring to him wanting to institute a policy that's been implemented before that restricts immigration from hotbeds of terror until a vetting process can be established? Shall I touch on the due process of the extrajudicial assassination program Clinton actively supported while in office?

, forcibly confiscating private property

True. He's equally bad on Imminent Domain as his opponent and the current admin are.

[sloopyinTEXAS]

, gutting libel laws in order to make it easier to silence journalists

Making it easier to sue doesn't make it easier to win. If anything, this is a move in the right direction because it prevents deliberate lying by people like Harry Reid (it worked, didn't it?) in order to sway an election.

, ordering U.S. forces to commit torture and other war crimes

Can anybody with a straight face say anything remotely critical of Trump here without bringing up "we came, we saw, he died! [cackle]" or the murderdrone program or extrajudicial assassinations of American citizens not even charged with crimes?

, and imposing a nationwide "stop and frisk" scheme in order to "take the gun away.

Actually he said he wants it imposed in cities with high murder and violent crime rates, not nationwide. And in that he is wrong.

You should make sure your talking points are in order before vomiting them all over the site.

[bassjoe]

Actually he said he wants it imposed in cities with high murder and violent crime rates, not nationwide.

It was in response to a general question about high rates of black-on-black crime. He clarified the next day that he was talking about Chicago but the question was not about Chicago specifically nor cities in general.

I'm willing to let the details of whether he meant "nationwide" or "only cities" or "just Chicago" slide because, whatever he meant, it was a horrible answer.

[sloopyinTEXAS]

It was an awful answer. Even super-preadators have rights. Right?

[Domestic Dissident]

Has Hildog named even one person yet who would be on her list? And if not, why isn't our wonderful media asking?

[DenverJ]

It's going to be Obama. That was the deal.

[AddictionMyth]

He changes his positions by the hour. Of course he can't be trusted. The scary thing is that the Trumpkins will hold him to account if he's elected (which he won't be, don't worry) and they will 'force' him to nominate Peter Thiel or Corey Lewandewski. "We gotta do it, folks. We don't have a choice."

[JohnBinCT]

Yup... from a freedom-minded perspective, there will be little difference between Trump's and Clinton's SCOTUS appointees. They'll both be the sort to bow to executive political pressure in "special" situations, like Roberts.

Those on the list might not, but they're not likely to be chosen.

[John]

Presidents, especially Republican ones, have a terrible record of picking justices to do their bidding. The only rule about justices I can see is that they either are what you expect them to be or they are more to the left. I have never seen a justice who ended up more to the right than they were expected.

This article is just comically stupid. Root tells us to ignore Trump's promise to appoint someone from the list he gave because well Root doesn't know. He just knows you can't trust Trump, except when he says something that Root doesn't like. Then he knows he means it.

And as sloopy pointed out above, it would be nice if Reason would stop lying about Trump's position on libel laws. I am sorry Daman but telling journalists they actually have to tell the truth and can't rely on the "I didn't know it wasn't true" defense for slandering a public official is not a threat to free speech not something anyone outside your loathsome profession cares about.

[sloopyinTEXAS]

It's not even the "I didn't know" defense I'm as concerned about as it is the open lies and shielding oneself by saying "he's a public figure so he's open to satire" bullshit when someone is deliberately slandering or libeling another person for political gain.

Harry Reid was my example for a reason.

[John]

The standard for a non public person is negligence. NYT v. Sullivan said that for a public figure it could be reckless disregard. NYT v. Sullivan involved an ad that was ran in the NYT by a civil rights group accusing the state of Alabama of doing various nasty things to civil rights protesters and Martin Luther King in particular. Sullivan was the State Police commissioner and though not mentioned by name because of his position considered it to be slanderous.

The thing that gets forgotten about the Sullivan case was that the advertisement was false. More than that, Sullivan wrote to the Times explaining how the ad was false and asked them to correct it and the Times politely told him to fuck off. Under Alabama law at the time, a plaintiff was entitled to punitive damages if the plaintiff had asked for a retraction and the defendant refused. So Sullivan sued and won a 500,000 damage award in Alabama court.

[John]

Under common law as interpreted in Alabama, the Times was guilty of Slander. To save the Times, the Court invented the public figure doctrine and said sure the information was false and sure under Alabama law the Times could be liable even though Sullivan wasn't mentioned by name, but since we need to have the press feel free to criticize public figures, we are going to invent the higher standard of reckless disregard and let the Times off because even though the ad was false and the Times knew it, they didn't act with reckless disregard because they never mentioned Sullivan by name. NYT v. Sullivan is a really lousy court decision. Yet, reason has this Pavlovian reflex to defend it and I bet money none of the staff have ever read the case much less understand what it actually involved and held.

[Cyto]

Everyone should know by now that I'm the antithesis of a Trump supporter, but if the question is who will be better on the supreme court, it is a no-brainer. In fact, this is the one rational argument I can see for voting for Trump. And no, I'm not talking about the question of abortion.

With Obama's additions to the court, joined by John Roberts, there is now a solid majority for a complete abdication of the role of the court as protector of the constitution and the law. As a group they now see themselves as arbiters of policy decisions, not interpreters of the law.

This might come out in a pro-big-state decision, or an anti-big-state position. Maybe a good decision, or maybe bad. But the reasoning is dangerously wrong, whether they get the decision right or wrong. They clearly see themselves as super-legislators who get to decide how we should live our lives.

Clinton makes no bones about it. She's firmly in the camp of the judiciary as super-legislator, deciding what is right and good and just and giving that opinion the force of law.

Trump .... well, who knows what he really thinks. But his list doesn't seem all that bad at first blush.

Forget conservative or liberal. If we don't hurry up and get some judges on the court who view their responsibility as being to interpret the law rather than decide what is good policy, our "Nation of Laws" is done for. We are already 90% the way there as it is. We can't take any more policy-makers on board.

[John]

And the attitude you describe is endemic to what I call the Con Law priesthood. These are the people who come out of Harbard and Yale, and then move onto government and academia after working as Supreme Court Clerks and then onto the court itself.

If there is one thing to be said for Trump on this subject, it is that he seems to be the first candidate in memory who is serious about appointing someone from outside the priesthood. Maybe his appointments will be just as bad but there is at least a chance they might be better if for no other reason than they are going to come from outside the conlaw priesthood. No other candidate, including Johnson offers that possibility.

[Agammamon]

No less than Clinton can, so its kind of a moot point, idn'tit?

[The Fusionist]

How about this - he posts bond that he will nominate *only* candidates on his list.

If he nominates *anyone* else, no excuse ("Democrats made me do it!") will be accepted, the bond will be forfeit, and the money - plus his estate in Florida will automatically go to the Federalist Society.

[The Fusionist]

If he genuinely believes in good conscience that, upon further reconsideration blah blah, he can't nominate anyone on the list, he can resign and leave any selling-out for Pence to perform.

[Cyto]

I kinda like your idea.... but we need to make some edits.

Where you have "Federalist Society" let's put "Cyto". That's a lot cleaner, don't you think?

[LifeStrategies]

Damon Root, you say: "Can Trump be trusted?"

Trump has lots of flaws, but why claim he can't be trusted when he categorically says: "this list is definitive and I will choose only from it in picking future Justices of the United States Supreme Court."

It seems you're letting your dislike of Clinton allow your recognition of Clinton's many lies to accuse Trump of the same mendaciousness. I don't see any reason to assume that his statement can't be trusted.

Up till now, I've mostly agreed with Reason, but your judgment is clearly severely flawed. Shame on you! Your article simply leads me to distrust you and your future articles...