One of my favorite lines from my favorite opinion of Justice Scalia’s – his dissent in Morrison v. Olson – is his observation that some cases raise issues that will affect the equilibrium of government power in ways that are not obvious. Those threats to the separation of powers are wolves, he observes, that appear in sheep’s clothing. “But,” Scalia stated confidently, “this wolf comes as a wolf.”
Of course, he was right. One wonders whether the same might be said about Donald Trump. Despite Trump’s pliable relationship with the truth, his pandering, his waffling, his refusal to answer questions about his Obama birtherism, and his seeming disdain for meaningful conversations about the substance of governing, he has not concealed his weakness on constitutionalism. Time after time, his disregard for, or ignorance of, constitutional government has been on prominent display. Puffy assertions by folks like Newt Gingrich that Trump is the only candidate who would protect the Constitution are so demonstrably false as to be worthy of harsh and sustained mockery.
That’s why those Republicans who prefer Trump to Clinton solely on the grounds of a potential Supreme Court appointment seem, though not unreasonable, a bit short-sighted: promising to appoint constitutionalist conservatives to the Court rings hollow if the President himself does not understand how to – nor does he care to – protect and defend the Constitution. And while it is true that the institutions of American government are likely strong enough to withstand a Trump presidency, why would we voluntarily put our institutions to that test? Doesn’t it say something about the intolerable danger of a candidate that we have to simply hope that the other branches of government will restrain his most dangerous tendencies? What if we’re wrong? It is not unreasonable to think that many in a Republican-controlled Congress would be too intimidated by Trump to defy him. As I have said before, Trump supporters cannot credibly complain about President Obama’s alleged constitutional excesses. And even Liberal constitutionalism is preferable to anti-constitutionalism.
So I was so pleased to read Orin Kerr’s assessment at VC, which I commend to readers, of a potential Trump Justice Department. Those of us who worked at Justice, like myself and Kerr, and who have deep affection for the DOJ as an institution, are rightly concerned about what a Trump agenda would do to the enforcement of federal law and the federal Constitution. And Kerr covers this ground well in his piece.
Most notably, though, Kerr concludes with the following observation about a Trump DOJ: “If you aren’t scared, you aren’t paying attention. A fascist thug has won the GOP nomination, and now has a very good shot at becoming president of the United States. And he hasn’t run in sheep’s clothing. As Justice Antonin Scalia might say, this wolf comes as a wolf.”