Some prominent movement conservatives have declared that they won’t support Donald Trump even if he wins the Republican nomination. The law professor and talk-radio host Hugh Hewitt, though, says he will support the populist businessman if he makes it to the general election. In doing so, he has become one of the most prominent right-leaning intellectuals to formulate a case that conservatives should prefer Trump to Hillary Clinton.
And the case that he makes is strikingly, tellingly weak.
“If Trump is the nominee,” Hewitt declared Monday, “I will support him for six reasons.”As it turns out, the first “three” of those “six” reasons are judicial appointments:
The first three are the existing and probable two additional Supreme Court nominations he will get to make. Judges Diane Sykes and Bill Pryor are two fine judges that Trump has mentioned as possible nominees and he made the right commitment on religious liberty to me on stage Thursday night. He won’t screw these up. More precisely, it is a lock that Clinton would screw them up and at least a fighting chance he wouldn’t.
Here are the other three reasons Hewitt offers:
Fourth, Trump’s an honest-to-God builder and he will rebuild the Navy, which must be done. Soon.
Fifth, Vladimir Putin and Xi Jinping will at least think twice before crossing him.
And, finally, sixth: Donald’s daughter and Svengali Ivanka is a smart, smart, smart lady with an extraordinary intellect and influence on her father. We get the GOP’s own Valerie Jarrett, only this one with a sense of America’s role in the world and the same resolve to succeed as Jarrett possesses.
Nick Gillespie of Reason writes, “These strike me as incredibly piss-poor reasons to support anyone for any office, much less Trump for president.” On the whole, I'd call most of Hewitt’s case laughable, and I can’t imagine that it will persuade many conservatives, whether or not they end up voting for the Republican nominee in 2016.
Let’s consider the arguments in reverse order.
From what little I can gather from TV, I think well of Ivanka Trump. But the notion that she is among the four-best arguments for electing her father is a testament to his unsuitability. Having a child who seems sensible is not a qualification for the presidency. Implicit in the notion that she’ll exercise “influence on her father” is the assumption that his instincts are so flawed he needs a counterweight. And every candidate will have access to advisors who are more knowledgeable, experienced, and tested than Ivanka in every area pertaining to the office.
The notion that Vladimir Putin and Xi Jinping “will think twice” before crossing Trump is nonsense too. Foreign dictators do not see a man firing Latoya Jackson on NBC or calling Jeb Bush “low-energy” and think to themselves, “Oh, this man is tough.” They see a media-hound national-security novice who never served in the military, settled fights with lawsuits rather than fists, knows relatively little about geopolitics, is regularly blinded by his own ego, and has a strange affinity for strongmen. Trump is an unknown quantity whom they’ll be incentivized to test for weaknesses.
The assertion that Trump is “an honest-to-God builder and he will rebuild the Navy” is a sound bite, not an argument. It elides the fact that Trump sells his name to builders more than he builds, and that we have no idea whether what he has built is of high quality. And why would a background as a commercial builder help Trump to have more success than a former senator and secretary of state getting Navy ships through the appropriations, procurement, and delivery processes? I like to imagine Trump in the Oval Office suggesting to a horrified Chairman of the Joint Chiefs that the new aircraft carrier be outfitted with marble decks. “We’re going to have the classiest Navy––Vladimir isn’t going to believe the quality.”
That leaves the matter of judges.
I agree that Hewitt is unlikely to support any Democratic president’s judicial appointments.
But I am skeptical that Trump will appoint judges who advance conservative ends. At the Volokh Conspiracy, Ilya Somin points out that Donald Trump has almost no record on most constitutional issues, “but he does have an extensive and consistent record on two important constitutional issues: freedom of speech and property rights.”
Somin calls that record “deeply troubling.”
As Walter Olson points out, Trump has a long history of filing bogus libel suits to try to silence his critics. He recently stated that he wants to “open up the libel laws” to make such lawsuits easier in cases “when The New York Times writes a hit piece which is a total disgrace or when The Washington Post… writes a hit piece.” It seems clear that he hates to be criticized, and wants to use the law to suppress such criticism as much as possible. His contempt for freedom of speech is also evident in his pining for the “old days” when his supporters could beat up protestors to the point where they “have to be carried out on a stretcher.” Ditto for his desire to have the FCC take some of his critics off the airwaves. It seems likely Trump would try to appoint judges who share his views on libel law (it might be harder to find ones who share his views on beating up protestors). If so, that would be a major threat to First Amendment rights.
But the problem goes well beyond that. The kinds of judges who would be willing to endorse the use of libel laws to stifle political speech are unlikely to effectively protect other important speech rights and civil liberties. Strong protection for political speech is one of the issues on which all but the most pro-government jurists (or those who are highly skeptical of nearly all judicial review) agree. Those who are willing to abdicate judicial responsibility in this field can’t be counted on elsewhere, either. On these issues, by the way, Trump judges are likely to be much worse than conventional liberal Democrats. Most of the latter support strong judicial protection for political speech, with the exception of campaign finance laws (an issue where Trump is on the same side as the liberals).
The other constitutional issue on which Trump has a longstanding, consistent record, is property rights. He has long defended the Supreme Court’s notorious decision in Kelo v. City of New London, and the doctrine that the government should be able to condemn property for almost any reason, including transferring it to influential private developers, like himself. This doctrine is contrary to the original meaning of the Fifth Amendment, and is also problematic from the standpoint of many “living Constitution” theories. It has led to extensive victimization of the poor and politically weak for the benefit of the powerful (including Trump himself).
Unlike in the case of freedom of speech, there are intellectually serious arguments to be made in defense of Trump’s position on takings, which is backed by many (mostly liberal) constitutional law scholars and judges. That’s one of the reasons why I took the time to write an entire book critiquing Kelo and other similar decisions. But most such defenses of Kelo at least implicitly depend on the proposition that property rights deserve little or no judicial protection of any kind. If Trump appoints pro-Kelo judges to the courts, that is likely to hamstring judicial protection for constitutional property rights in many other cases, as well.
Moreover, as Jonathan Adler points out, most constitutional originalists (particularly conservative and libertarian ones) oppose Kelo. Pro-Kelo Trump appointees are likely to be either living constitutionalists, advocates of across-the-board judicial deference to the government, or some combination of both. That ought to concern conservatives and others who want to see originalists on the bench.
This extensive record on two major constitutional issues easily outweighs Trump’s one-time mention of Judges Diane Sykes and William Pryor as potential Supreme Court nominees. Given Trump’s willingness to say almost anything to get elected, a consistent, longstanding record should carry more weight than a single piece of campaign rhetoric in his case, even more than with most other candidates. Indeed, these are among the very few issues on which Trump has taken a consistent position since long before he ran for president.
Somin’s skepticism is well-founded.
Donald Trump has no attachment to any conservative or libertarian judicial principles. And after his divorces, bankruptcies, flip-flops, and documented lies, it’s absurd for Hewitt to cite a debate stage answer as evidence of Trump’s “commitment on religious liberty.”
Does Hewitt think Trump is a man who honors his commitments?
On religious liberty, Trump’s rhetoric suggests that he is more likely to set precedents violating it with Muslims as his target than to protect it for all religious people.
Overall, Trump would choose jurists who serve his own interests. That may mean appointing people who take the broadest possible view of executive authority, in keeping with a candidate who praises Vladimir Putin and the approach taken by China’s leaders in Tiananmen Square. Trump may pick a judge who is regarded as tough on immigration to solidify his credibility on that issue with his base of supporters. He may use his nominations as a bargaining chip to get domestic legislation passed, perhaps giving Democrats a pro-choice nominee. And it’s impossible to believe he’ll adhere to the originalism that movement conservatives purport to want when he has never in his life seemed to care at all about it.
All we can know for sure is how poorly Trump seems to understand the judiciary. At Red State, Leon Wolf expressed alarm at the candidate’s apparent belief that judges sign bills.
Here's what he said in a recent debate:
Now, Ted’s been very critical, I have a sister, who is a brilliant, [crosstalk] excuse me, she’s a brilliant judge. He’s been criticizing… he’s been criticizing my sister for signing a certain bill. You know who else signed that bill? Justice Samuel Alito, a very conservative member of the Supreme Court, with my sister signed that bill. So, I think that maybe we should get a little bit of an apology from Ted, what do you think?
Here’s what he said after that debate when asked how he would avoid nominating another jurist like John Roberts, who Trump regards as a terrible mistake:
I would wanna see scholars, but I think more than my asking, I would go on references of other people that I respect. Because that is not necessarily my world. I’m very much into the world of legal and legality. But, that is not my world, so I would go to people that I have great respect for and say, “Who do you recommend?”
There’s no telling what Trump would do—and he could nominate someone totally unqualified, especially when one considers federal judicial appointments as a whole. Do we really want to risk him giving his cronies a bunch of lifetime appointments?
Hewitt is a smart man.
In most circumstances, given his beliefs, he should absolutely vote against Hillary Clinton. The fact that the case he makes is so laughably weak when he tries to justify voting Trump over Clinton bodes ill for Trump and his supporters. Any movement conservative who joins them has a lot of intellectual embarrassment ahead, for there is no credible way to reconcile Trump with conservative policy, principles, values, or temperament.