by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The prospect of a Supreme Court defined by Hillary Clinton is grim, and conservatives are right to be concerned. But while the Supreme Court may be the last compelling reason to vote for Donald Trump, it’s hardly a sufficient reason to vote for him.
Start with the short-term. The immediate cause of the Supreme Court frenzy is the vacancy left by Antonin Scalia’s death, which Hillary Clinton would surely fill with a staunchly liberal justice, shifting the center-of-gravity of the Court leftward. This would, indeed, be a loss.
And Trump might, indeed, appoint someone better. Might. His list of potential Supreme Court nominees, released under duress in May, is promising, if hardly foolproof. But it is also provisional. There simply is no reason to believe that the same Trump who has contradicted himself on amnesty for illegal immigrants, abortion, NATO, and much else, will stick to his assurances on this. Recall that this is the same man who — in February — suggested nominating his sister, who once wrote a decision defending partial-birth abortion. (Trump added at the time that he did not like people criticizing her “for signing a certain bill,” suggesting that a septuagenarian presidential candidate was very recently under the impression that judges sign bills.)
But let’s say Trump abides by his word: In the short-term, then, the best-case scenario is that a President Trump picks a reliable conservative to replace Justice Scalia. Yet even this only maintains the status quo: four liberal justices, four conservative justices, and Anthony Kennedy, swinging in the middle. And this relies on the makeup of the Senate. If Republicans win the White House in November but lose the Senate, Democrats could force Trump to replace Scalia with a Kennedy-esque “moderate.” The possibility that Trump would get to appoint conservative justices to replace any of the oldest, left-leaning justices — Ginsburg (83), Kennedy (80), or Breyer (77) — is no more likely than that they would stick around until 2020.