In the aftermath of President Trump’s excellent nomination of Judge Neil Gorsuch of the Tenth Circuit Court of Appeals to fill Justice Scalia’s seat on the Supreme Court, triumphalist Trump supporters are having their day.
They deserve it.
They’re fully within their rights to mock those Constitutional conservatives – like me! – who said that Trump would never appoint a conservative to the Court.
But they are ignoring one rather crucial point: if had been up to them, they wouldn’t have pressed Trump for a damn thing. Trump appointed a conservative to the high court because he needed to please Constitutional conservatives. He didn’t do it because he is a deeply knowledgeable Constitutional scholar (he once said in a presidential debate that his Supreme Court justice would have to prosecute Hillary Clinton and also said he might appoint his leftist sister to the Supreme Court); he didn’t do it because he’s an advocate of Constitutional separation of powers (he’s never made any comment along those lines). Trump appointed Gorsuch because he promised he would. And he only promised he would because he needed to gain the support of doubtful conservatives, which he almost universally did.
Yet to listen to Trump’s most ardent fanboys, conservatives should apologize for ever having doubted Trump. Charlie Hurt, who has spent the entirety of the last election cycle waxing and buffing Trump’s shoes to high gloss, writes today:
The Never Trumpers accused Donald Trump of not being conservative, not being a constitutionalist and not being a Republican. They were too stupid to realize that all three of those ‘attacks’ were actually selling points for the man who would become president….It would be nice for the holier-than-thou Never Trumpers to finally acknowledge how wrong they were and concede that maybe, just maybe, you don’t have to be one of them to care about the country and stick up for the Constitution.
This is asinine.
You can’t have it both ways: you can’t celebrate Trump for doing something conservative, then celebrate that he’s not a conservative. You can’t cheer Trump for pleasing conservatives, then razz conservatives for being conservative. You can't applaud Trump for picking a constitutionalist while simultaneously applauding Trump for "not being a constitutionalist." That’s a recipe for Trump to abandon the Constitution and conservatism entirely.
Here’s the truth: Trump picked a Constitutional conservative because his base wanted it. If it hadn’t been for conservatives pressuring Trump, does anyone truly believe he would have – out of the goodness of his own nationalist populist heart – have released a list of judges vetted by the Heritage Foundation and the Federalist Society? Trump himself morally pressured conservatives to vote for him by stating over and over again that he would fill Scalia’s seat with a conservative. Does anyone think he would have done that if everyone had just kissed his ass for the entirety of the primaries and the general election like the Breitbart crowd, regardless of his judicial picks?
The huge majority of those critical of Trump on judges and skeptical of him on his constitutional principles voted for him because they hoped he would fulfill his promises, not because they were sure of it. As Dennis Prager, an ardent Trump advocate, stated over and over, the choice was between two doors: behind the first, a man-eating lion (Hillary Clinton), and behind the second, either a man-eating lion or a beautiful woman. On Judge Gorsuch, the bet paid off. But that doesn’t mean there was never any bet.
Those of us who got it wrong on Trump’s judicial pick are ecstatic we got it wrong. But it was our pressure, and the pressure of those who care about Constitutional conservatism more than personal loyalty to a politician, that pushed Trump to pick a conservative justice in the first place. Want to know why Trump will embrace a trillion dollar infrastructure plan, if he does? It won’t be because of Constitutional conservatives – it will be because of sycophants like Charlie Hurt, cheering him along. Want to know why Trump will embrace Bernie Sanders-lite trade policy, if he does? It won’t be because of Constitutional conservatives – it will be because Trump can safely split the Republican baby on that issue.
It turns out that he couldn’t split the Republican baby on a conservative judge. He needed Republicans and conservatives to support him. It’s why he moved his announcement of Gorsuch up by several days amidst the hubbub over his botched executive order rollout on immigration and refugees.
So, here’s the only question that matters: what comes next?
Constitutional conservatives will be the ones pressuring Trump to be conservative, not the populists who would have been happy to watch Trump appoint a cipher to the Supreme Court. Trump’s Gorsuch pick should embolden conservatives, not be used as a club to shut them up – their pressure may be the best incentive for Trump to embrace the promises he made on the campaign trail, and the best check against a big government pivot to the center.
So thank you, Mr. President, for Judge Gorsuch. I, along with a lot of other doubters, got it wrong on the Court – as I’ve been more than happy to say over and over and over. But thank you far more to my fellow conservatives who refused to be pressured into silence on the Constitution and conservatism, and who won’t be silent if and when Trump decides to follow the primrose path away from both the Constitution and conservatism. Charlie Hurt and company won’t be anywhere to be seen when that happens. They’ll be too busy carrying the royal throw pillows, mocking those who aren’t clapping loudly enough.