[While I was finishing this post, I saw the terrible news that Justice Scalia died. God rest his soul. The GOP Senate majority should not permit President Obama to replace Justice Scalia, and should slow-walk any appointment he may make until after January 2017. That empty seat will be and should be a campaign issue. It raises the stakes considerably for the next President.]
The other day a friend asked me: “what kind of judges would Trump appoint?”
“They will be the best, the smartest legal scholars we have, people who know the Constitution up and down, the whole thing, and especially our second amendment, which no one will touch, not while I am President, the second amendment is sacred, and they will be outstanding judges, judges who will be fair, but also do justice, and keep our country safe, so that criminals like the guy who killed Kate, beautiful Kate in San Francisco, people like that will go to prison for a long, long time, or back to Mexico, where they belong, if they are here illegally. And the judges I appoint will follow the law carefully, and they will always do what is good for America. And I know some of the best people in the country who will advise me on which judges to pick, great lawyers, great trial lawyers, and I know lawyers who are great negotiators, the best in the country, some of these guys are killers, not nice guys, but tough, smart, incredible lawyers, and legal scholars, from top law schools, the best law schools, and they know who the best people are, not necessarily people you have heard of, but the best, and we will appoint amazing judges. Trust me, the American people will be very proud of the judges we pick.”
This is of course a spoof of Mr. Trump’s speaking style.
However, a little research discloses that my satire was pretty close to what he actually said when he was asked this question:
“Well, first of all, we have a lot of judges that have to be appointed because we have a lot of openings in terms of judges. And I’m very happy about that, to be honest, because I think, you know, appointing judges is a very important and a very, frankly, a very, very important element of what we’re doing. … Well, I’m going to appoint conservative judges. I’m going to appoint people that have great reputations, that are great with the legal profession… I will study it carefully. I will work with people that I respect, conservative people, and we’ll appoint judges that will be good.”
So, Mr. Trump has not yet developed a smoothly articulated public position on judicial appointment. Nonetheless, as I will show below, even these off-the-cuff statements provide a clear and favorable indication of what kinds of judges Mr. Trump will appoint if elected.
The question of what kind of judges Mr. Trump will appoint is causing panic in some conservative circles. It is fair to say the foregoing answer, by itself, does not provide much reassurance.
Mr. Trump has said very little about Supreme Court Justices, let alone appellate and district court judges, and only under questioning, not at his own initiative. During this election campaign he has focused on other issues.
Judicial appointments are a somewhat wonkish concern. Most people don’t know that much about it, or understand it, or care about it. The kind of people who focus on judicial appointments are people with a strong focus on a single issue, which might be advanced or threatened depending on who is on the Supreme Court. People with very strong ideological beliefs also care very much about Supreme Court appointments.
For example, people who are single issue gun rights voters care very much about who is on the Supreme Court. Trump has been very strong on this issue. He talks about it a lot. One of his five published position papers is on this issue. It appears that we can safely assume that a President Trump will not nominate anyone for the Supreme Court who is not strong on the Second Amendment.
Another significant group of single issue voters are pro-Life voters. This group cares intensely about who is on the Supreme Court. Trump has said on several occasions that he is pro-Life. Abortion is a not a focus of his speeches, but he has been consistent on the topic during this presidential race. In January he published an op-ed entitled My vision for a culture of life: “Let me be clear — I am pro-life. I support that position with exceptions allowed for rape, incest or the life of the mother being at risk.” Note that he does not say “life or health” — which is considered no limitation at all by pro-Life voters, since anyone seeking an abortion will always able to get a doctor’s note. So Trump’s public statement claiming to be “pro-Life” is solidly within the Conservative mainstream, where the centrist position is typically summarized as precisely this “pro-Life with exceptions”. Trump is articulating what is probably the rightward-most electable position on the subject.
But pro-Lifers are not convinced. Trump, as recently as 1999, publicly said he was pro-Choice, though as early as 2000 he publicly stated his opposition to partial birth abortion. His sister is a judge who is pro-Choice, and whom he has publicly said in August of 2015 that she would make a “phenomenal” Supreme Court justice.
In 2011 Trump made a public declaration that he had changed his mind on the issue and was now pro-Life. Pro-lifers apparently reject this story of personal growth and conversion on the issue. Instead they, rather uncharitably, assume Trump must be lying. They see these comments as merely a cynical ploy by Trump to bamboozle them into voting for him prior to his contemplated but abandoned 2012 presidential run.
Also, pro-Lifers are culturally conservative generally, and they have a gut-level dislike of a guy who was married three times, who is not personally religious in any way that they recognize or respect, and who is part of the vulgar Hollywood celebrity culture which they despise. Trump’s demeanor and the milieu he comes from are repellant to many pro-Life voters, without regard to his merits otherwise. Finally, pro-Lifers are frustrated with Republican candidates who talk their talk but, in their view, never do anything for their cause. They think Trump will be at least as bad, since he has not shown a long and ardent commitment to the issue.
In short: Pro-Lifers don’t trust Trump.
Are pro-Lifers wrong about this?
Can we assess Trump’s likely judicial appointments, to see if their worries are justified?
If we disassemble his response quoted above we can cull out some themes.
Trump said he is glad he will be able to appoint a lot of judges, and that is a “very, very important element of what we’re doing.” So, judicial appointments are an important issue for him. Why this is an important element of “what he is doing” is an interesting question. Appointing conservative judges may be a goal in itself, if only to satisfy an important consituency. However we can read this more deeply as meaning that his program will be controversial, it will be challenged in court, and it will require support from the judicial branch. Probably both are true.
“I’m going to appoint conservative judges.” That is an unambiguous, simple, declarative sentence. Judicial appointees must have the right ideological orientation, they must be conservative, or Trump will not nominate them. Notably, Trump has specifically said that Chief Justice Roberts was a disastrous appointment, that he is not conservative enough, and that Roberts’ Obamacare ruling was “disgraceful”. Trump has singled out Clarence Thomas, whom he described as “very strong and consistent”, as the kind of Judge he wants.
Whatever Conservatives may make of this, people on the left are terrified by it, which is a good sign.
“I’m going to appoint people that have great reputations, that are great with the legal profession…” So, conservative potential appointees, will then be assessed for competence and good reputations. That should not be controversial.
“I will study it carefully.” Trump is saying that he does not have expertise in this area, but that he will study it sufficiently to make sure the appointments meet the two criteria listed above.
“I will work with people that I respect, conservative people, and we’ll appoint judges that will be good.” This tells us how Trump will “study” the issue. He will get good advice and act on it.
These are the steps that any conservative Republican president would actually follow, even though they feign omniscience in answering questions from the media.
Trump’s method in business is to set a policy direction, get top-notch subordinates, let them do the job, intervene only when necessary, hold his subordinates accountable for results, reward success and penalize failure. While he is boastful about his skills, he is also humble about his limits. He knows the scope of his own domain expertise, and hires people to advise him in other areas. We have to assume that he will do the same thing with regard to judicial appointments. The foregoing sketch of a program for making judicial appointments is consistent with his usual practice, is reasonable generally, and is probably what he will actually do.
None of the foregoing scares me, as a life-long conservative.
But, let’s be cynical. Let’s assume Trump is dishonest, which I do not for a moment believe. Let’s assume that Trump really is not personally, subjectively pro-Life, and is lying about that, which I also find unlikely. Let’s assume he would secretly prefer to appoint less conservative judges than he claims, even pro-Choice judges.
Even if all of this theoretical dishonesty shaped Trump’s deep motives, you have to look at the cost-benefit calculus he faces to decide if he would ever act on it.
You always have to look at the incentive structure to predict conduct.
Trump has a practice during this presidential campaign of saying what he intends to do, and repeating that message in simple phrases, over and over, like a mantra. We can reasonably assume that his policy priorities once in office will be the ones he is always talking about on the campaign trail: border security, trade, military strength, VA reform, healthcare reform, tax reform, Second Amendment rights.
That is a heavily loaded plate. If Trump can make progress on all of those he will be a historic president. And he clearly wants to be. Like him or lump him, Trump does not think small. He will swing for the fences, and his presidency will be “yuge.”
Though a lot can be done with the President’s “pen and phone”, made famous by our current President, Trump absolutely needs major, fundamental legislation to make the changes he is proposing. Therefore Trump absolutely must work with Congress, and make deals with both houses of Congress.
To accomplish his ambitious goals, Trump absolutely must have the strong and consistent support of a GOP Congress. And the GOP majority Senate is unlikely to approve judges who are not conservative, and will object if Trump nominates any judges who are not conservative.
Trump would be sacrificing, or at least risking, his main priorities if he got into a conflict with the GOP Senate majority over judicial appointments.
To the contrary, there is every reason to believe that Trump will use judicial appointments as a way to gain credibility with ideological conservatives, many of whom are otherwise disinclined to like him or support him. If he does what he says, and he usually does, Trump will seek expert advice, and identify and appoint conservative, competent judges, with Clarence Thomas as a model. Thanks to the Federalist Society and its work for many years, there exists a deep bench of conservative judges and lawyers to choose from. Conservatives will be elated if this happens.
Further, Trump is a deal-maker. District court appointments are typically made at the suggestion of the Senators from the state where the district is located. Appellate court appointments are similar, with the Senators heavily involved in the choices, though there is sometimes ideological controversy with regard to appellate court appointments. That is the existing process and Trump is not likely to interfere with it. He will thereby gain bargaining points with the various Senators, which will facilitate deal-making on other matters.
On Supreme Court appointments, Trump will likely see at least four things. First, these appointments are always historic milestones, they are controversial and contentious, and he will give each one of them a lot of attention and exercise great discretion in his choice. Second, a president’s long-term legacy is shaped by his Supreme Court appointments, and a good appointment will help “make America great again” for many years into the future. Third, Supreme Court appointments are choices which a President Trump completely controls, which give him the chance to gain substantial credibility and support from factions who are not his strongest supporters, at no financial cost whatsoever. Fourth, the people who will hate conservative appointments to the Supreme Court are already Trump’s opponents, and he will gain nothing by placating them. This set of incentives suggests that he will consult with the GOP Senate leadership, identify Supreme Court nominees who will be conservative and competent, who are likely to bring luster to his presidency, and who will likely be approved by the Senate, and appoint them.
Trump would face a howling gale of angry opposition if he tried to appoint a pro-Choice Supreme Court justice, for example. There is no reason to think Trump would gratuitously embark on a full scale war with the GOP Senate majority on an issue which is not one of his core policy goals.
This leads me to conclude:
Trump will appoint conservative, competent Supreme Court justices, without regard to any contrary subjective beliefs he may have, because that is the pragmatic political choice necessary to accomplish his goals.
And if Mr. Trump really is pro-Life, and a conservative, in his own mind and heart, that only strengthens this conclusion.
My hopeful prediction is that the foregoing process will lead a President Trump to appoint conservative, competent judges most of the time, and to make Supreme Court appointments which are acceptable to the GOP Senate majority and hence to most Conservatives, including pro-Life voters.
In short, I have no fear whatsoever about a Trump presidency on this particular score, and other conservatives should not either.
UPDATE: Trump mentioned two judges in the recent debate as possible Supreme Court appointments: Diane Sykes and /William Pryor. Both would be good appointments. His comment about Sykes was: “I think there are some great people out there, Diane Sykes from Wisconsin, from what everybody tells me, would be outstanding.” This shows that my analysis is correct. Trump will seek expert advice on court appointments and appoint conservative judges.