No, Trump Isn't Going to Save The Supreme Court

In the absence of a serious foreign policy and an economic plan not involving massive tariffs – and in the absence of a rational and decent candidate – pro-Trump advocates have fallen back on one argument and one argument only: he’ll be better for the Supreme Court.

Leading the charge on this score has been syndicated radio host Hugh Hewitt, who penned a column in late July titled, “It’s the Supreme Court, stupid.” He sums up the argument well:

If Hillary Clinton wins, the Left gavels in a solid, lasting, almost certainly permanent majority on the Supreme Court. Every political issue has a theoretical path to SCOTUS, and only self-imposed judicial restraint has checked the Court's appetite and reach for two centuries. That restraint will be gone when HRC's first appointee is sworn in. Finished.

Every word of this is true. Hillary’s justices will cripple Constitutional interpretation on religious freedom, gun rights, and freedom of speech, among other crucial issues.

There is only one problem: there is no shot – zero shot – that Trump will appoint a conservative. That’s for three reasons.

1. Trump Doesn’t Care About The Issue. Trump keeps citing the Supreme Court as reason enough for conservatives to vote for him. A typical Trumpian line: “If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway. You know why? Supreme Court judges, Supreme Court judges.” Except that Trump doesn’t care about the issue in the slightest. First, he doesn’t know what Supreme Court justices do – he said in open debate that he’d appoint people who will prosecute Hillary Clinton. Second, he says he doesn’t care if Republicans hold the Senate: “Well, I’d like them to do that. But I don’t mind being a free agent, either.” Republicans holding the Senate would be the prerequisite for any conservative nomination possibility. Finally, Trump handed over his list of 11 potential justices – a list he clearly hadn’t read. He then backtracked and said he’d nominate someone “like” someone on the list, which totally undercuts the point of the list, since he has no clue what originalism or textualism are.

2. Republicans Aren’t Going To Use The Nuclear Option. Republicans will not have a filibuster-proof majority. That means that Democrats will filibuster any serious conservative Trump nominates. This means that we’re now relying on the courage and intestinal fortitude of Mitch McConnell, the man who has cut repeated deals with President Obama, to stop the Democrats by invoking the nuclear option. That isn’t going to happen. McConnell didn’t even invoke the nuclear option on the Iran deal, despite calls for him to do so. In 2005, the Republicans put together a Gang of 14 to avoid invoking the nuclear option on judicial nominees; some of the Republican judicial nominees were dropped as a result. Does anyone really believe that Mitch McConnell would stand taller than that on a Supreme Court nominee? Or would he come to a compromise solution?

3. Trump Will Cave. After a Democratic filibuster threat, Trump would come back with a “highly qualified” nominee who will be able to garner 70 votes in the Senate, declare victory, and pat himself on the back. According to Hewitt, the Republican Senate would step in and stop Trump from doing that. That’s ridiculous. Republican Senators are prepared to vote for Hillary’s nominee – and Hewitt defends that! Hewitt said on the air this morning that McConnell had a “political obligation to honor her mandate…they are estopped from changing their mind.” He added, “I don’t want to turn every Republican Senator into a liar.” Except that Republicans could simply say no to Hillary’s nominees (I’ve pressed McConnell on this exact point personally, and he shied away). This means that Trump advocates are now in the unenviable position of arguing that the same McConnell who will fold to Hillary and folded repeatedly to Obama would stand up to Trump. Nope.

So no, Trump won’t appoint a conservative Supreme Court justice. This is the reality-based position. But in the fantasy world where polls don’t matter, Senate procedures don’t matter, and Mitch McConnell is a fire-breathing fighter on behalf of conservatism, sure, everything will be fine.

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