Ilya Somin on Donald Trump’s Supreme Court List and Originalism
Ilya Somin at Volokh Conspiracy: Donald Trump’s expanded Supreme Court list changes nothing. From the introduction:
On Friday, Donald Trump issued an expanded list of potential Supreme Court nominees, adding ten more names to the list of eleven options he put out back in May. Whether you like the names on the expanded list or not, it does not change any of the reasons why Trump is a menace to the Constitution. It also does nothing to change the reality that Trump’s longterm agenda is deeply inimical to originalism, limited government, and efforts to ensure that the federal judiciary will protect those values.
The most prominent name on the new list is Utah Senator Mike Lee, ironically also a leading #NeverTrump conservative. . . . Senator Ted Cruz has cited the expanded list as one of his principal reasons for belatedly endorsing Trump. Regardless of what Cruz might say, the list changes nothing.
Voicing concerns over Trump’s list of nominees:
To the contrary, he has a wide-ranging repressive agenda that would undermine the Constitution at many points. And much of that agenda is an outgrowth of views he has consistently held since long before the 2016 campaign. Unlike the Supreme Court list, it is probably not just a campaign ploy.
Given these types of commitments, it seems likely that Trump will seek to appoint judges who will allow him to do what he wants in all these areas, not originalists or limited government conservatives who might rein them in.
Trump’s threat to originalism:
. . . As prominent originalist constitutional scholar Randy Barnett points out, “puts it, “[i]f Trump takes over the Republican Party it’s likely to become a right-wing nationalist party of the kind you see in Europe.”
In the long run, such a party would have little use for originalism, free markets, property rights, or constitutional constraints on government power, more generally. To the contrary, all of these things are likely to be obstacles to its authoritarian nationalist agenda. And, like other parties throughout our history, a Trumpist GOP would, over time, appoint judges who are in generally line with its objectives. That’s a far greater threat to constitutional originalism and limited government than even a Hillary Clinton victory is ever likely to be.
For originalists, limited-government conservatives, and libertarians who care about the judiciary, one or two distasteful Supreme Court appointments are a far lesser danger than having both major parties adopt judicial philosophies inimical to their goals.
In sum, originalists backing Trump because of his Supreme Court list are trading their principles for a mess of pottage they might never get to eat. And even if Trump does serve up a helping or two, it will not be worth the awful long-term price.
Without expressing an opinion on the larger question, these comments seems doubtful on two narrower grounds. First, it seems unfair to call the lists "a mess of pottage." I think the general consensus is that the lists are quite strong. On the new list, in addition to Senator Lee, there are two well respected court of appeals judges with originalist/textualist orientations -- Neil Gorsuch and Timothy Tymkovich. I'm not familiar with all of the people named, but I think it would be hard for conservative/libertarian-leaning orignalists to be too disappointed with a pick from the lists.
There is also the question whether a President Trump would actually pick from his promised lists. Professor Somin thinks not, but I'm inclined to disagree. At least as to the first pick, it would be one of the new President's first actions; departing from the lists would constitute an open break with congressional Republicans and the Republican base, who at this point are heavily invested in getting someone who is at least quasi-originalist. My guess is that Trump doesn't care enough about the Supreme Court to provoke a rupture over it.
Whether that justifies overlooking the other issues Professor Somin raise is, of course, a different question.