Over and over again, we’ve heard both hardcore and reluctant Trump supporters alike try to shame and/or scare us #NeverTrump conservatives into backing Trump by claiming that if we don’t vote for him, Hillary will pack the court with liberals, and it’ll be lost for generations. I’ve also been told many times that Trump can be trusted to appoint conservatives, thus saving the court. While it’s true that Hillary would nominate liberal justices, the claim that Trump would fight against Democrats in Congress to nominate conservative justices flies in the face of everything we know about Trump from his entire life history.
First of all, he doesn’t keep his word on anything, just ask the banks he refused to pay back loans to when his businesses went bankrupt, or the workers at those same businesses, who he refused to pay overtime to, or in some cases refused to pay at all. His word isn’t worth the paper it’s written on, and that’s literally all we have when it comes to his promise about appointing good judges. Secondly, he hasn’t fought for a single conservative principle, policy, or person his entire life, and isn’t about to start at age seventy. That’s just not how the brain works. By that age, you are who you are. Either you’ve been humbled and changed into a better person by your life experiences, or you haven’t, and clearly the latter is true with Trump because he’s never experienced tragedy or intense suffering his entire life. That’s not an exaggeration either, just read his biographies if you don’t believe me.
He’s been a liberal his entire life, and in fact still is, he’s just pretending to be a conservative to win the votes he needs in this election. He only cares about himself, not ideas and policies that conservatives have fought for for decades. He certainly doesn’t care about the Constitution, which tells me he would actually appoint a judge who wasn’t an originalist, because only that kind of judge would be willing to allow him to pass his executive orders. A true originalist justice in the mold of Thomas or Alito would vote to strike down and block his executive overreach, and Trump’s ego couldn’t handle that. If he has the power to nominate a judge who will act as a rubber stamp for his big gov’t, isolationists, nationalist, agenda, why wouldn’t he? It’s simply illogical to suggest that he’d use up what little political capital he would have to fight the Democrats over a conservative justice who would be likely to end up opposing some of his pet projects anyway. He’d be much more likely to cut a deal with them, as I’ll explain shortly.
But this is assuming that Trump would have the chance to nominate those justices in the first place, which requires a second assumption that the three liberal justices who are the oldest members of the court will die or retire in the next four years. Trumpsters’ entire argument hinges on this core premise, without it, it falls apart like a house of cards. So let’s examine it.
If Hillary is elected president, there’s a chance that no Supreme Court justices will die or retire, which means she would only replace Scalia with a liberal, and if she loses in 2020, it would be far more likely the conservative president who took her place would have a chance to replace the justices who would retire at some point during his or her presidency.
On the other hand, if by some miracle Trump won, he would surely lose in 2020 since he’d be the worst president in US history. I say this without a shadow of a doubt in my mind. That would mean that he would replace Scalia with one conservative justice if we’re lucky, and the next liberal president in 2020 would replace the justices who retire during his presidency, thus tipping the court to the left. In other words, there’s at least as much of a chance that if Trump is elected president, the very thing that Trumpsters fear, a swing of the court’s balance to the left, would happen as if Hillary is elected president.
The fact that we’re talking about nearly equal probabilities here severely weakens their supreme court argument.
Consider this: The 3 oldest justices are Ginsburg (83), Kennedy (80), and Breyer (78). They’re all liberals. If Trump was elected president, why would they retire, knowing that would make it possible for him to replace them with a conservative? Why wouldn’t they just wait four more years until he loses and a Democrat is elected and can replace them with liberals? These justices have clearly demonstrated in the past that they’re willing to act in a partisan way to advance a progressive agenda, so why would they not act that way in this case? If they do wanna protect Obama’s legacy and the progressive policies they’ve been fighting to protect for decades, there’s a very high probability that they’ll do whatever it takes to survive another four years on the court, even if their health and minds are deteriorating.
There’s evidence to back up this point:
“A 2010 study on the retirements and deaths of Supreme Court justices concluded that the odds that a justice will retire increase by 168 percent when the incumbent president is from the same political party as the president who nominated the justice and the presidential administration is in its first or second year.”
So, assuming they acted in their typical partisan fashion, that would mean Trump would only get to replace Scalia, and even then I think it’s very unlikely that he replaces him with a conservative, for the reasons I outlined above. In the best case scenario, he replaces the empty seat with a conservative, which would basically put us right back to square one, with the evenly divided court we already had. They wouldn’t overturn Roe v Wade- heck they didn’t even strike down Obamacare, and ruled in favor of gay marriage.
But more importantly, and more ominously, in the worst case scenario, Trump cuts a deal with the Democrats, getting their support on restricting free trade or immigration in exchange for giving them a moderate justice they would be willing to confirm. Even worse, after a disastrous and embarrassing four years as president, he would likely lose in 2020 in a landslide, much like Carter did in 1980. This would mean that those three liberal justices who were waiting to retire when they could be replaced by a Democrat president could now retire, resulting in three new liberal justices on the court. Even if Trump replaced Scalia with a conservative, that would tip the balance to the liberals, 5-4, and that’s being generous because I’m counting Roberts as a conservative there.
Now, clearly this is all based on probabilities. Any one of those justices could die while Trump was president, or decide to retire unexpectedly. But it’s just as likely neither of those things could happen. Trumpsters have said all along that if Hillary is elected we know exactly what kind of justices she’ll appoint to the court, but they’ve been assuming all along that she’ll get the chance to do so. That’s an assumption that’s based on probabilities, namely the probability of any of the justices dying or retiring while she’s president. Either of those things is far from certain, which means it’s not the open and shut case they’ve tried to convince us it is.
One could make the case that all outcomes are equally likely: Hillary wins and appoints one liberal, two liberals, or three liberals; Trump wins and appoints one, two, or three liberals or conservatives depending on how many justices die or retire during his time in office and on whether he’s willing to fight the Democrats’ filibuster each time; Trump wins, but loses in 2020, and the new Democrat president appoints one liberal, two liberals, or three liberals because none of the justices died or retired until then.
As you can see, when you really break down the “But the Supreme Court!” argument, it’s a rather flimsy one. But beyond that, it’s just one factor out of many that we must consider when picking a president. My own belief is that Trump’s severe incompetence, unstable temperament, lack of character and principles, and history of hiring the worst/most incompetent people on the planet completely negate or balance out this argument anyway. Having a semi-conservative Supreme Court will be of little consolation to conservatives when we have a president who claims to represent us who’s tanking the economy, adding to our debt (Trump says he won’t touch entitlements), and turning off an entire generation of young people to the conservative movement, which will have rippled effects for years to come.
I might be accused of exaggerating these potential effects of a Trump presidency, but we’re already seeing the effects of Trump’s stench on the conservative movement, as many college students who would have eagerly supported a conservative nominee are disgusted with Trump and are leaving the party. He’s also turning off many young women to the conservative cause, and they aren’t likely to return anytime soon. Why would they, when GOP voters nominated a misogynist who is on record talking about assaulting women, and when many Republican men are defending him on it?
Trumpsters only argument is that all this is worth it just because of a probability that we’ll be able to have a somewhat conservative Supreme Court, even though Republican presidents have a history of nominating liberals, and even though there’s an equal probability that those empty seats will be replaced by a liberal president in 2020. When it’s shown in this light, we can see how it was more of an emotional argument and a political tactic to defend their support of an unelectable and immoral nominee than it was a clearly thought out and rational argument. Trumpsters figured they could use fear to scare us into voting for such a horrible nominee who doesn’t even remotely represent our values and principles. They underestimated the strength of our convictions and our knowledge of how our system of checks and balances works.
The Supreme Court isn’t the end all be all either, at least it shouldn’t be for conservatives, but even if it was, it’s foolish and illogical to base one’s vote for president entirely on a set of probabilities that have nothing to do with the actual candidate they’re voting for. If the Supreme Court was all there was to this election, GOP voters might as well have found the most conservative person in the country regardless of their profession or past experiences, nominated him or her, and hoped they’d win so that they could act as a rubber stamp for nominating conservative supreme court justices. Might as well forget about their experience, temperament, character, or competence, which is what many Trumpsters have done with Trump.
This is no way to pick a nominee or a president. The Supreme Court is only one branch of gov’t. The President still has great power and influence, particularly on the international stage, and we simply can’t ignore his or her personal attributes and life experiences, or lack thereof. History has shown us that they’re crucial, and determine far more than who they end up nominating to the Supreme Court.
In the end, the Supreme Court argument that many reluctant Trump supporters used to justify supporting him, including Senator Cruz, was the last branch they had to stand on. But like all of the other branches, it was weak, and not nearly enough of a reason by itself for conservatives to hold their nose and vote for the worst nominee in the history of the GOP. I would instead urge my fellow conservatives to vote for the only candidate in the race who is a principled conservative with character and wisdom. His name is Evan McMullin. You won’t regret it.
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