What Some Conservative Legal Scholars Think About Trump

What Some Conservative Legal Scholars Think About Trump August 14, 2016

Given rather unpopular nominees for the two major parties, both sides are arguing that the Supreme Court alone justifies a vote for their candidate. And that’s mostly right. The balance of power on the court hangs in the balance. But some conservative legal scholars are speaking out against Trump anyway.


“The only glimmer of hope in the Trump fiasco” is the list of 11 judges the candidate put forward as suitable Supreme Court nominees, said Richard Epstein, a Hoover Institution Fellow and professor at both New York University School of Law and the University of Chicago Law School. But that is based “on the questionable assumption that a man of his mercurial temperament and intellectual ignorance will keep to his word,” he said…

“The Supreme Court—and judicial appointments more broadly—is probably the single best reason to vote for Trump,” said Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute. “But even then, there’s a lot of uncertainty. How hard would Trump push to get a nominee confirmed? What would he do if his first choice were rejected? Would he make a ‘fabulous deal’ to trade judicial appointments for other priorities?”

“Trump put out a genuinely excellent list of potential appointees, but how much can we trust that list?” Shapiro continued. “Even Ronald Reagan and George W. Bush, who were committed to appointing principled originalists and textualists, made mistakes; how would a president who knows nothing about the Constitution and thinks that judges ‘sign bills’ fare?”…

“The court is important, to be sure ― but not nearly that important,” said retired Temple University Law School Professor David Post, who now writes for the conservative website the Volokh Conspiracy. “With all due respect to my colleagues who might feel differently, this one strikes me as a no-brainer.” The next president might end up only filling a single seat on the court, Post said. “The idea that it makes sense to trade a single justice for all of Trump’s terrible baggage ― his bullying, his ignorance, his appalling tendency to shoot his mouth off without thinking, and all the rest of it ― strikes me as thoroughly preposterous,” he added.

Ilya Somin, who teaches law at George Mason University and also blogs for the Volokh Conspiracy, argues that a Trump presidency might even be worse for the courts than a Clinton one.

“Trump has a terrible record on constitutional issues,” he said. “He seeks to gut freedom of speech and constitutional property rights, and undermine constitutional constraints on executive power even more than Bush and Obama have.”

“Moreover, over the long term, a Trump victory increases the likelihood that the GOP will become a big-government xenophobic party hostile to civil liberties and opposed to most constitutional constraints on government power ― much like the far-right nationalist parties of Western Europe, whose platforms are very similar to his,” he continued. “Such a party is likely to do far more to undermine the Constitution than even a Hillary Clinton victory.”

I would actually consider it pretty certain that Trump will name those from the list he released or similar nominees to them, for one simple reason: He doesn’t care about the Supreme Court. He doesn’t know a damn thing about it and he probably could not care less. So he’s likely to just farm that out, telling his people to give him a list of suitable candidates to choose from and a recommendation on which one is the best, and that list is likely to come directly from the Federalist Society. Which is exactly why I think it’s so dangerous to put him in the oval office (among a thousand other reasons, of course).

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