Creepy orange presidential candidate Donald Trump took another step in his pathetic effort to assure Republican voters that he is worthy of the presidency by releasing a list of eleven potential nominees to the United States Supreme Court. Coverage at Politico here. This from the man who spoke of federal appellate judges “signing bills” and who said that the Supreme Court had a responsibility to look into Hillary Clinton’s emails.
By any measure, this is a solid – though incomplete – list (no Paul Clement? No Brett Kavanaugh? No one from outside of the “judicial monastery”?). From what I know of each of these names, they are conscientious judges and surely qualified for service on the Court. Moreover, I was pleased to see some diversity among law schools that they attended. Michigan, Chicago, Duke, Georgetown (Hoya Saxa!), Tulane, Wash U., Kansas – whoever helped to compile the list was sensitive to the reality that someone is capable of being a good lawyer and a good judge even if he or she did not attend Harvard or Yale (they might also have been sensitive to this fact because Justice Scalia made a point of noting, in what seemed like a criticism, that all of the current Justices went to either Harvard or Yale). Some have academic backgrounds, some more exclusively political. I hope we do not see a repeat of the Harriet Miers debacle, in which Miers was derailed – from the Right, really – after some raised legitimate concerns about her fitness for the Court, though some also illegitimately criticized Miers’ nomination because she did not attend an elite law school (she went to SMU, a very fine place). Still, it might be even more sensible to conclude that after an entire career as a lawyer, and perhaps as a judge, there are weightier and more directly relevant factors at play than where one received his or her law degree decades ago. I sense that those who compiled Trump’s list understand this.
Obviously, the list was Trump’s way of reassuring conservatives who harbor serious doubts about his ability to make an informed appointment to the Court. While Trump’s list is a good one, serious conservative constitutionalists will not be fooled. Nice try, though.
First, as Trump has demonstrated time and again, he is capable of saying one thing on one day and completely reversing himself the next. One should be cautious about having any more faith in this list than in anything else he has said. Why some people mythologize Trump as someone who “tells it like it is” is a mystery I will never be able to solve.
Second, Trump’s list merely obscures the bigger problem he has with conservative constitutionalists – a group that, I suspect, is among those who are the most intractably opposed to Trump’s candidacy. And for very good reason. That is, they are less concerned about whether he will appoint judges who are conservative constitutionalists (though they are rightly concerned about that, today’s list notwithstanding), and more concerned that Trump himself is not a conservative constitutionalist. And no number of lists of potential judicial nominees will ever be enough to sufficiently mitigate that shortcoming.
For these conservative constitutionalists, the presidency demands a person who understands and respects the separation of powers and the proper division of authority between the States and the federal government; who understands the balance that the law must strike between the claims of liberty and the claims of order; who appreciates the responsibilities and limits of the judiciary, the legislature, and of his own office. The president must not only appoint judges who will interpret the Constitution, but the president himself must also be prepared to do so – when deciding what legislation to recommend, when deciding whether to exercise his veto, when deciding whether a particular executive order is permissible, when deciding whether to send American troops into harm’s way. The first thing every president does is take an oath to faithfully execute the office and to preserve, protect, and defend the Constitution. And the Constitution follows him everywhere he goes. Yes, he gets legal advice from those around him. But ultimately, those constitutional judgments are his. It is no mere luxury that a president be intellectually serious about constitutional deliberation, even if he is not a lawyer.
I remind my students regularly: some constitutional questions will never be decided by a judge, or even see the inside of a courtroom, including the Supreme Court. They will be debated among political actors instead, including the president. I have spoken at length about this: if you are among those who value constitutional literacy in the presidency, and who take seriously the separation of powers and federalism, Donald Trump is simply not your guy. And after eight years of Republicans frothing at the mouth about a president who, in their view, did not respect the constitutional boundaries of his office, it is frankly unbelievable – and more than a little hypocritical – that these same Republicans could now support Trump. Wednesday’s list, while somewhat reassuring, does not change Trump’s own constitutional illiteracy or his disinterest in the principles and formalities of constitutional government.