The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Some conservatives and libertarians who otherwise have little love for Donald Trump believe that he is preferable to Hillary Clinton because he might appoint good judges, whereas the Democrats almost certainly will not. That tendency may have increased after Trump announced a solid list of potential Supreme Court appointments last month. Leading legal scholar John McGinnis (with whom I have coauthored several articles), for example, argues that Trump is now a better bet on the Supreme Court than Hillary Clinton, even though there are strong reasons to oppose him on other issues. Although Trump may not care much about the Supreme Court or constitutional issues, McGinnis and others argue he might stick to the list in order to get the support of Republicans for other initiatives (such as his plan to massively increase tariffs, for example). On this theory, the case for Trump is that he might appoint much better judges than Hillary Clinton, even if it is by no means certain.
The problem with this sort of reasoning is that it overlooks the possibility that Trump might not only fail to appoint better judges than Hillary Clinton, but actually appoint much worse ones. Even more importantly, it overlooks the likely longterm effects of a Trump victory on the Republican Party and its judicial philosophy. When it comes to constitutional law, Trump is not just a blank slate. He has an agenda.
I. Why Trump Might Appoint Worse Judges than Hillary Clinton.
The mere existence of the list certainly does not preclude Trump from appointing terrible judges. As I have previously pointed out, Trump's announcement of the list indicated that it is just a "guide," and he later reiterated its nonbinding nature. Much more importantly, all or most of the judges on the list are at odds with Trump's strong commitment to undermining freedom of speech and constitutional property rights. Both long predate his presidential campaign, and are therefore likely to be genuine objectives, not merely short-term political ploys. Trump also seeks to undermine constitutional limitations on presidential power on a shockingly wide range of issues. Trump could appoint some good judges if he thinks it is politically advantageous to do so. But he could instead appoint ones more in line with his own positions.
Once President Trump discovers that the judges on the list probably won't support his agenda, he might well instead nominate people who will. Where will he find such nominees? It would likely have to be among those conservative jurists and legal scholars who support wide-ranging judicial "deference" to the political branches of government across a very broad range of issues. Such people do exist, and they would be the ones most likely to give him much, if not all, of what he wants on speech, property rights, executive power, and other issues. If you care about enforcing constitutional limits on government power, such ultradeferential judges are likely be even worse than standard-issue liberal ones. The latter, at least, will enforce a wide range of civil liberties, some restrictions on executive power, the rights of criminal defendants, and so on. The former won't even do that much to a more tha minimal degree. Some on the right might argue that the Democrats are worse on freedom of speech because they want to overturn Citizens United. But, so does Trump.
Admittedly, you might welcome all of this if your main goal is to promote "judicial restraint" defined as deferring to the legislature, the executive, and their agents in the bureaucracy. Ditto if your main judicial goal is overruling Roe v. Wade. But if you care about enforcing originalism, and its associated limits on government power, judges who reflect Trump's views are likely to be worse than liberal ones would be.
II. Why We Can't Count on GOP Senators to Save Us.
Perhaps we needn't worry about this because Republican senators will refuse to confirm Trumpist judges, and instead insist on getting more conventional conservatives. Don't count on it. Senators rarely oppose judicial nominees by a president of their own party. John McGinnis suggests that the Senate will refuse to confirm "cronies," citing the example of the 2005 rejection of poorly qualified Bush nominee Harriet Miers. An obvious crony may indeed be rejected. But it is unlikely very many GOP senators would oppose a reasonably well-qualified nominee with a conservative background, who nonetheless takes an ultradeferential approach to judicial review.
If a few GOP senators do defect, Trump could potentially make up the shortfall by soliciting Democratic support. Given growing liberal fear of what they decry as "conservative judicial activism," some Democrats might well prefer a deferential Trumpist judge to a more conventional Republican nominee, who might want to tightly limit federal power or strengthen protection for property rights and religious liberties.
Ultimately, it is dangerous to count on the congressional GOP to restrain Trump. Few politicians will put principle ahead of support for the party's leader—especially if that leader has just led them to a major electoral victory. Just as GOP members of Congress supported Bush in many actions they would never have accepted from a Democrat, and Democrats did the same (in reverse) with Obama, so too most Republican members of Congress will back most of Trump's agenda if he wins the presidency. Such tendencies are particularly strong in our age of virulent "partyism," where partisans are reluctant to attack a president of their own party for fear of giving aid and comfort to the opposition. As conservative columnist Mona Charen puts it: "If Donald Trump is president,… there will be no united opposition among Republicans. As we've seen in the past few weeks, the urge to bend the knee is very strong. How much more intense will it be if he sits in the Oval Office?"
III. A Look at the Long Run.
Understandable focus on the Supreme Court nominations in our immediate future has led virtually all commentators to overlook the likely longer-term effects of Trumpism on Republican judicial philosophy. Even if Trump initially appoints a few good judges, that trend is not likely to last.
Trump is not just a conventional Republican candidate. He wants to remake the GOP into a "workers party" (as he himself calls it), similar to the big-government right-wing nationalist parties of Western Europe, such as France's National Front. Like Trump, these parties combine xenophobia and protectionism with a strong authoritarian streak, and support for an expansive welfare and regulatory state (so long as the beneficiaries are primarily people of the "right" racial and ethnic background).
If Trump wins the presidency and his agenda is seen as a political success, he will have the opportunity to move the GOP further in a National Front-like direction. And a Trumpist/National Front party will have little use for limited government-originalist judicial philosophy. To the contrary, federalism, the separation of powers, and many individual rights limitations on government power would be an impediment to its agenda. A Trumpist GOP would, over time, seek to appoint judges in line with its priorities.
We don't yet know what the full contours of a Trumpist judicial philosophy might be. But they are likely to include sweeping executive power (so the party's Great Leader will not be hamstrung by constraints on his power), a narrow view of freedom of speech (so he can intimidate critics with libel suits and administrative harassment), tight restrictions on civil liberties (making it easier to, among other things, round up and deport many millions of undocumented immigrants), and weakening constitutional property rights (so that the government can have a free in transferring property to its cronies in the business community).
More speculatively, it could also include a weakening of legal rules barring racial, ethnic, and religious discrimination by the government. Trump, after all, has called for a ban on the entry of Muslims into the US, and referred favorably to one of the most infamous cases of racial discrimination in American history: the World War II-era internment of Japanese-Americans, which Trump has cited as a precedent justifying his own policies. Such discriminatory policies are consistent with his efforts to capitalize on white racial resentment and identity politics. Here too, Trumpism is very similar to the agenda of European far-right nationalists.
History shows that in the long run parties tend to appoint judges who are at least generally in line with the party's ideology. When the ideology shifts in a major way, the party's judicial philosophy eventually changes as well. Traditional Progressive judges such as Learned Hand became dinosaurs after the Democratic Party shifted in favor of civil liberties and racial equality in the 1950s and 60s, and old-style Republican judges went the same way after the GOP became more conservative in the late 70s and 80s. The same thing will eventually happen to pro-limited government originalists in a Trumpist GOP.
Judges are not just the handmaidens of their party's political agenda. They have an important measure of autonomy. But rarely will they be fundamentally at odds with that agenda—at least not for very long. Admittedly, Trump might not succeed in changing the GOP much, even if he becomes president: if he gets impeached or otherwise fails spectacularly, for example. But that won't be much consolation to people who want the GOP to be able to make judicial appointments. The party would be (rightly) blamed for Trump's failures, and its ability to win the White House and make future judicial appointments would be seriously impaired for quite some time.
If Trump wins the election and manages to recast the GOP in his image, the types of judges the party appoints will also change. And a president who is perceived as politically successful usually has a substantial impact on his party's agenda, as other politicians will seek to mimic his platform in order to share in the electoral spoils.
If Trump loses, on the other hand, there is a good chance that originalists who seek to limit government power will continue to have a strong influence on the party's judicial philosophy. As long as that philosophy is the dominant view within one major party, it is likely to have a considerable impact on the judiciary and constitutional debates more generally. Admittedly, support from one party is not nearly as good as a bipartisan consensus. But it's a lot better than being shut out from the major parties entirely. Ultimately, maintaining the long-term viability of a judicial philosophy is a lot more important than any one Supreme Court appointment, or even two or three of them. If you care about the long-term future of originalism and enforcing constitutional limits on government, you have good reason to be #NeverTrump—all the way.
UPDATE: Michael Ramsey comments on this post here. He suggests that "many originalists would prefer a highly deferential Court to one that embraces a Tushnet/Chemerinsky version of living constitutionalism." Even if this is true, most conventional liberal judges would not go as far as Tushnet and Chemerinsky (just as most conventional right of center judges do not go as far as the most extreme conservative or libertarian law professors). While conventional liberal appointees will issue many rulings that originalists dislike, many originalists might still prefer them to ultradeferential judges who leave our constitutional rights almost completely at the mercy of the state—especially in an age of vastly expansive government power where there is tremendous scope for abuses that often will not be curbed by the political process.