The last and greatest hope for Trump boosters to convince #NeverTrump folks is to hold the specter of Supreme Court nominations over their head. The reasoning goes as follows: we already know/assume Trump will fill the vacancy filled by the death of the great Antonin Scalia, and there’s a good possibility that he will get one or two more.
The alleged pragmatist who is making this argument will then inevitably move on to say, sure, we don’t really know what Trump will do on judges, but we know there is zero percent that Hillary will nominate a conservative, and who knows? Maybe Trump will nominate someone who’s on our side by accident. Besides, we have this list that Trump has put out that shows that his head is on at least sort of right on judges.
When dealing with a man who lies as habitually as Trump, whenever his stated positions conflict with his actual behavior, you should always ignore his stated positions. As Walter Olsen has illustrated, Trump’s behavior towards Federal Judge Gonzalo Curiel, whose only sin has been to rule against Trump and his lawyers, indicates that he doesn’t believe in any judge who would ever rule against what he, as President, wants to do. In other words, he doesn’t believe in a conservative judiciary at all. As Walter Olsen has noted:
In his rambling remarks, Trump also referred to Judge Curiel as “Mexican”: the jurist, previously the chief federal prosecutor for drug cases in southern California, was born in Indiana. Stoking by repetition, as his crowd of thousands booed, Trump called the federal judge “a hater of Donald Trump, a hater. He’s a hater,” and said he should be placed under investigation by the court system. I wonder whether anyone will be shocked if the judge requests personal protection for himself and his family as the trial proceeds.
Obama’s 2010 State of the Union remarks railing at the Justices of the Supreme Court in their presence regarding Citizens United were bad.This is far worse: the case is still in progress, Trump is a party, and the attack is on a single judge who will now find his task of ensuring a fair trial complicated. Trump, who speaks regularly around the country, chose to unleash the diatribe in the locality where the judge and others who will participate in the case, such as jurors, work and live.
Make no mistake: this speech was targeted and intentional intimidation of a sitting Federal judge in order to influence the outcome of a case to which Trump is a party. There is no chance that Trump does not know how the slobbering mass of his followers (especially the openly racist portion that he actively courts) will respond to this extended criticism of a public figure such as this. Just the emails I get every day through the RedState contact form would curl your nose hairs.
There’s no possible reason that Trump mused aloud that Curiel was “A Mexican, we think,” other than to intentionally sic his rabid racist horde on the man for having the temerity to rule against him.
Again, never has Trump suggested that Curiel did anything actually improper at all other than ruling against him, which is self-evidently improper to Trump and his loyal followers. Making him the subject of such an extended rant in his own backyard in the midst of a case in which Trump himself is a party… well, let’s say this: criminal prosecutions have proceeded on the basis of far less egregious behavior.
Donald Trump knows nothing about the judiciary or how it is supposed to work. He has admitted as much. During the course of a televised debate, he stated on multiple occasions that he believed that judges “sign bills.” Then after the debate he admitted that he wouldn’t have any idea where to even begin in selecting a Federal judge.
But of course this is only half true. The main thing Trump knows about judges is that he absolutely HATES being told by a judge that he cannot do anything. Any time a judge rules against him, it cannot be because the judge has a different view of the law, or is even possibly right – no, it must be because the judge is corrupt (and probably a Mexican hater) and should be removed from the bench.
Conservative judges know and understand that the United States federal government is a government of enumerated powers; that is, it only has the powers vested in it by the Constitution. In fact, this is the cornerstone of conservative judicial philosophy – that the Federal government simply cannot do everything that it might like to do, even if the politicians who are elected by the people would strongly prefer it to be so.
You know who doesn’t believe in the existence of such constraints? Liberal judges – they really don’t believe in any such thing as abuse of the commerce clause and most of them don’t know that the Tenth Amendment even exists.
Many of the things Trump has promised to do on the campaign trail – including the wholesale unilateral revision of trade agreements, the rewriting of state libel laws, and so on, are manifestly outside the authority granted to the executive branch under the Constitution. The question you have to ask yourself is: do you think Trump cares about that at all? And do you think he would even in the slightest humor any judge who suggested to him that there were certain things he would not allow the great President Trump to do?
What Trump says about the judges he would appoint is one thing. His record is totally different. And what his record suggests is that he’s totally disinterested in a conservative justice at all.