At Volokh Conspiracy, Ilya Somin: The big picture on Trump and the Courts: Why constitutional originalists should be #NeverTrump all the way. He begins:
Some conservatives and libertarians who otherwise have little love for Donald Trump believe that he is preferable to Hillary Clinton because he might appoint good judges, whereas the Democrats almost certainly will not. That tendency may have increased after Trump announced a solid list of potential Supreme Court appointments last month. Leading legal scholar John McGinnis (with whom I have coauthored several articles), for example, argues that Trump is now a better bet on the Supreme Court than Hillary Clinton, even though there are strong reasons to oppose him on other issues. …
The problem with this sort of reasoning is that it overlooks the possibility that Trump might not only fail to appoint better judges than Hillary Clinton, but actually appoint much worse ones. Even more importantly, it overlooks the likely longterm effects of a Trump victory on the Republican Party and its judicial philosophy. When it comes to constitutional law, Trump is not just a blank slate. He has an agenda.
As he continues:
… [A]ll or most of the judges on [Trump's] list are at odds with Trump’s strong commitment to undermining freedom of speech and constitutional property rights. Both long predate his presidential campaign, and are therefore likely to be genuine objectives, not merely short-term political ploys. Trump also seeks to undermine constitutional limitations on presidential power on a shockingly wide range of issues. …
So where to find support for this agenda?
It would likely have to be among those conservative jurists and legal scholars who support wide-ranging judicial “deference” to the political branches of government across a very broad range of issues.
If you care about enforcing constitutional limits on government power, such ultradeferential judges are likely be even worse than standard-issue liberal ones.
And further:
If Trump wins the presidency and his agenda is seen as a political success, he will have the opportunity to move the GOP further in a National Front-like direction. And a Trumpist/National Front party will have little use for limited government-originalist judicial philosophy. To the contrary, federalism, the separation of powers, and many individual rights limitations on government power would be an impediment to its agenda. A Trumpist GOP would, over time, seek to appoint judges in line with its priorities.
(Thanks to Michael Perry for the pointer).
I suspect, though, that many originalists would prefer a highly deferential Court to one that embraces a Tushnet/Chemerinsky version of living constitutionalism. (Clearly, most conservatives would). Thus Professor Somin's final point is the one most worth considering.
Posted at 6:41 AM