The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
President Trump gave a series of interviews with Bob Woodward. Today, the Washington Post published some excerpts concerning the Supreme Court. Most of what Trump told Woodward is standard fare--he repeats the same points over and over again. There were a few new tidbits.
First, Woodward baits Trump by suggesting a statue of him should be built outside the Supreme Court:
Still, remaking the bench with conservatives is one of Trump's key accomplishments, so much so that Woodward responded with a joke: "Maybe they'll put a statue of you outside the Supreme Court."
The president took to the suggestion instantly. "Oh, what a good idea," Trump said. "I think I'll have it erected tomorrow. What a great idea. I'll think I'll use it."
But, Trump added, "I won't say it came from me."
Woodward is a good reporter. Woodward stroked Trump's ego so Trump would say something outlandish. And nothing strokes his ego more than statues. Woodward succeeded. I recently watched All the President's Men for the first time. (It is on HBO Max). Robert Redford captured Woodward well.
Second, Woodward asked Trump about the fact that President Carter had zero appointments. Trump relied, "He deserved none." The Democrats had 61 seats during Carter's the first half of his term and 59 seats during the second half. Imagine if White or Brennan or Marshall had retired early? Or if Douglas had stuck it out one more year?
It is remarkable how fickle life tenure is. In Trump's first time, he will make three nominations. Obama had two in his first term, and zero in his second term. W. Bush had zero in his first term, and two back-to-back in his second year. Clinton had two in his first time, zero in his second term. H.W. Bush had two in his first term, and no second term. Reagan had one in his first term, and three in his second term. Carter had zero. Ford had one. Nixon had four in his first term. Had he served a full second term, in theory, he would have had the chance to replace William O. Douglas.
If Trump is able to confirm someone before inauguration day, he will have three appointments in his first term--second to only Nixon in the modern era. Of course, Presidents used to have many more. Eisenhower had five and Truman had four. FDR had nine. Harding had four. Taft had six. (Can you even name two of them?) Lincoln had five, but he was working with ten seats. (Too soon?). Jackson had six. And of course, GW, the OG, had eleven nominations (if you include John Rutledge's recess appointment).
Third, Trump "keeps a list of judicial appointment orders displayed, prop-like, on the Resolute Desk — 'kind of like he was cherishing it.'"
Fourth, Woodward tried to bait Trump on Bostock. Woodward was hoping Trump would criticize Justice Gorsuch, or say something homophobic. Nope:
Woodward also asked Trump about Gorsuch leading the court in a landmark decision on LGBT rights in June, when it ruled against the administration in offering sweeping protections for gay and transgender people against workplace discrimination.
When Woodward noted Gorsuch voted "against your administration's position," the president seemed to accept the decision, saying, "Yeah, but this is the way he felt. And, you know, I want people to go the way they feel."
What a remarkable statement. After thousands of hours of vetting the short list, Trump says meh. "I want people to go the way they feel." Forget textualism or originalism. Trump favors feelism.
Still, Trump lamented that the ruling "opens the spigots for a lot of litigation."
He doesn't say what those spigots are. Presumably, he is referring to the Title IX litigation. I doubt the Equal Rights Amendment litigation is on his radar. Keep an eye on those cases, post-Bostock.
Woodward asked whether Trump would have joined the Bostock majority. What a bizarre question. Again, Woodward was trying to bait Trump. Trump didn't take the bait.
When Woodward said he believed that Trump might have joined the majority decision if he were on the court in favor of "more freedom," the president considered the idea, before saying, "Well, I'll never get that vote."
Woodward tried to bait Trump one more time with flattery:
"Well, maybe you can appoint yourself," Woodward joked.
"I am what's good for the people," Trump responded. "All people. So, you know, that's where I am."
After four years, I still cannot tell if Trump is toying with reporters, knowing they will blow up everything he says out of context.