There can be no more beating around the bush. If you are a constitutional conservative who cares about the Supreme Court and safeguarding our constitutional form of government, you must oppose Donald Trump’s candidacy. A Trump victory would all but cede control over the Supreme Court to the left for a generation or more, allowing a liberal majority to undo every victory achieved by the late Justice Antonin Scalia.
First, one should not ignore the polls. If Donald Trump were to win the Republican nomination, he would lose to Hillary Clinton in the general election — badly. The latest numbers found at Real Clear Politics show that Clinton holds a double-digit lead in six out of seven national polls. Governor John Kasich actually leads Clinton in all seven polls, while Senator Ted Cruz leads in one and is tied in another. Only Trump is a guaranteed loser.
If he is the Republican nominee, he will lose. And when he loses, he will give the second President Clinton the chance to name Justice Scalia’s replacement. Do not kid yourself for a second that she will use her first pick on the court on someone as (relatively) old and (relatively) moderate as Merrick Garland. The Democratic base has made its disappointment with Obama’s selection of Garland clear. Hillary Clinton will almost certainly choose a younger, more activist nominee to reward her supporters and preserve their loyalty for the 2020 reelection campaign. To make matters worse, Justice Ruth Bader Ginsburg will likely step down, granting Clinton at least a second appointment.
That Trump is all but certain to lose a general election is not exactly newsworthy to constitutional conservatives. After all, the aforementioned horribles were discernible to anyone with a pulse and an Internet connection. But over the past month, Trump has given constitutionalists another reason to be concerned: What if he wins?
Donald Trump seems to have absolutely no understanding about how our government works, and, in particular, how federal power is distributed between three separate branches of government. In a late February debate, he defended his sister’s judicial record by saying that she “signed” the same “bill” as Supreme Court Justice Samuel Alito when they served on the same appellate court together. In trying to show that his sister was not liberal, he showed himself to be ignorant. Most middle school students are aware that judges do not sign bills.
More recently, Trump was asked what type of judges he would nominate to the Supreme Court. Trump responded, “Well, I’d probably appoint people that would look very seriously at [Hillary Clinton’s] email disaster because it’s a criminal activity, and I would appoint people that would look very seriously at that to start off with.” He continued, “What she’s getting away with is absolutely murder. You talk about a case — now that’s a real case.”
A charitable reading of Trump’s response is that he is so committed to staying on message that he would have used any question to ding Hillary Clinton. But it’s far from clear that he deserves such charity. It’s more likely that Trump actually believes judges — Supreme Court justices, no less — have the power to conduct criminal investigations of individuals. This level of ignorance would be funny if it weren’t so sad — and, given Trump’s likely nomination, dangerous.
Trump was also asked recently what he thought the top three priorities should be for the federal government. He listed national defense, education, and healthcare. For most constitutionalists, his answer would have merited a 33 percent, or F grade. After all, conservatives and federalists for years have been pushing for states to have more control over education policy. As for healthcare, Trump might remember that the Court’s conservatives, led by Justice Scalia, recently fought two losing battles against President Obama’s national healthcare plan, one specifically because they argued that the federal government did not have the constitutional authority power to force individuals to buy health insurance.
Trump’s circus act is entertaining, and under other circumstances, perhaps I would care less that he threatens to turn the White House into a clown car. But Justice Scalia’s sudden death — leaving a swing seat on the High Court open — has left two branches of government up for grabs this election, not just one. Constitutional conservatives who actually understand what judges, including Supreme Court justices, do, and appreciate the Court’s role in our constitutional system, should oppose Trump’s nomination and fear his election.