Why Trusting Donald Trump on Judges Is Folly

Supreme Court appointments are not a persuasive reason for conservatives to back the billionaire.

Eric Thayer / Reuters

In the late 1990s, one of the largest corporations in the world wanted to build an upscale business park with a luxury hotel on waterfront property in New London, Connecticut. Families owned homes on that same land. Many of them refused to sell. One elderly resident, Wilhelmina Dery, had lived in the same home her entire life and didn’t want to move someplace new in her 80s. Another, Susette Kelo, just wanted to keep living in her little pink house, where she flew an American flag.

But government officials with ties to the corporation didn’t care. They forced people from their property. They bulldozed their working class neighborhood, hoping that the corporate interests poised to build there would generate more tax revenue.

It was a moral outrage.

The folks forced from their homes filed a lawsuit, insisting that their rights had been violated. They granted that the Fifth Amendment to the Constitution allowed the use eminent domain for public uses—if a vital new highway could not be built without taking a parcel of land in its path, for example, the state could go forward with the project so long as the owner was justly compensated for the taking. But they argued that the Constitution does not permit the government to take land for private uses. The state cannot seize your house and give it Pfizer, or Coca-Cola, or McDonald’s, or a real-estate mogul intent on expanding one of his properties.

The case went all the way to the Supreme Court.

And in a 5-to-4 decision, the liberal justices, joined by moderate Anthony Kennedy, sided with the government officials, ruling that they could force Americans out of their homes and transfer ownership of the land to a private corporation.

The 2005 decision sparked a popular backlash. As the conservative Justice Sandra Day O’Connor observed in her dissenting opinion, “the specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” Another conservative justice, Clarence Thomas, observed that “though citizens are safe from the government in their homes, the homes themselves are not.”

That same year, the court’s decision was praised by a billionaire real-estate developer with a personal interest in eminent domain. (He once tried to have the government force a woman from her home against her will so he could build a limousine parking lot.) He told Fox News of the ruling, “I happen to agree with it 100 percent.”

His name: Donald Trump, the same man a faction of conservatives is trying to elect because they insist, against all evidence, that his judicial nominations are to be trusted.

This is folly.

“Donald Trump’s view of eminent domain is not just immoral and un-American,” John Nolte wrote at Breitbart.com, one of the most pro-Trump publications in America, “it exposes a very troubling mindset that contradicts the populist appeal that has helped him get as far as he has in the Republican primary. People need to ask themselves if they want a second president in a row who’s so eager to use the fascist power of government to crush the individual in furtherance of corporate interests.”

And eminent domain is just one of many reasons to reject the proposition that it makes sense to vote Trump because his Supreme Court nominations will protect the Constitution, or the conservative or libertarian agenda, or that they will thwart the left. A posture that amounts to “trust him, he’ll come through” is an absurd folly put forward by pundits who would not lend Trump money if they ran a bank. They see, in that case, that he would fleece his creditors as soon as he had an incentive to do so. Yet they fail to see that were Trump elected, he would have no incentive to advance an originalist legal philosophy and every incentive to do the opposite.

Their failure of imagination is best fleshed out by Ilya Somin, the libertarian legal scholar, who opined at the Washington Post about what Trump judges are likely to look like:

If Trump wins and his agenda is seen as a political success, he will have the opportunity to move the GOP further in a National Front-like direction. And a Trumpist/National Front party will have little use for limited government-originalist judicial philosophy. To the contrary, federalism, the separation of powers, and many individual rights limitations on government power would be an impediment to its agenda. A Trumpist GOP would, over time, seek to appoint judges in line with its priorities.

We don’t yet know what the full contours of a Trumpist judicial philosophy might be. But they are likely to include sweeping executive power (so the party’s Great Leader will not be hamstrung by constraints on his power), a narrow view of freedom of speech (so he can intimidate critics with libel suits and administrative harassment), tight restrictions on civil liberties (making it easier to, among other things, round up and deport many millions of undocumented immigrants), and weakening constitutional property rights (so that the government can have a free in transferring property to its cronies in the business community).

This really isn’t difficult: Multiple policies that Trump has proposed violate the Constitution. Yet his apologists ask us to assume that this unprincipled admirer of authoritarian strongman Putin will nominate judges who will reliably rein in the government!

There is a faction that is analyzing not Trump’s posture toward the Constitution as a whole, but his likely effect, relative to his opponent, on one issue most important to them. They are Christians who feel themselves to be under siege, presume Clinton will undermine their religious liberty, and hope Trump might be better.

Though Rod Dreher cannot imagine voting for Trump, he is one of the most thoughtful religious conservatives pondering if Trump would be better for religious liberty.

Here’s how Dreher explains that logic:

I would not expect a President Trump to advocate for causes important to religious conservatives. That’s not who he is, and that’s not what will have gotten him elected. The best we can hope for is that he will appoint judges to the federal bench, especially to SCOTUS, who will interpret the law so as to give maximal protection to religious liberty…

Which brings us to the only religious conservative case for Trump that makes any sense to me. Trump may not care about our issues, but that also means he doesn’t care to fight against them. There is a chance that if elected president, he would defer to his advisers on picking judges, especially for SCOTUS, and give us judges that understand the vital importance of the First Amendment. There is no chance that Hillary Clinton will do this, in my view, and an overwhelming chance that she will appoint judges and advocate policies that drive orthodox Christians further out of the public square. She will consider it a virtue to bankrupt small businesses that resist the LGBT steamroller, and consider it a good deed to unmask and exile ‘bigots’ wherever they are—and smash their institutions.

The glaring flaw in this logic is that Trump is not, in fact, ambivalent about protecting the liberty of religious Americans, he is openly antagonistic to it––it’s just that he has singled out Muslim Americans rather than Catholics or Jews or Mormons.

Dreher is blind to the degree to which their respective fates are tied.

If Trump and the judges he appoints help local communities to prevent the construction of mosques, other zoning bodies will use the same precedents to rein in churches; an effort to ban headscarves could have implications for Sikhs and Jews; whether a Muslim cab driver is able to refuse passage to someone ferrying alcohol will bear on whether a Christian can decline to bake a cake for a gay marriage. It’s hard to anticipate exactly what controversies will arise in future years, or how the precedents set will be applied still farther in the future, but suffice it to say that any legal attack on one faith’s religious liberties threatens every faith.

Which candidate is most likely to mount significant new attacks on a religious group, and to nominate judges with little regard for protecting minority rights? Here’s a clue: Would you rather live as a Muslim under Trump or a Christian under Clinton?

As Somin puts it, Trump’s legal agenda could include “a weakening of legal rules barring racial, ethnic, and religious discrimination by the government. Trump, after all, has called for a ban on the entry of Muslims into the US, and referred favorably to one of the most infamous cases of racial discrimination in American history: the World War II-era internment of Japanese-Americans, which Trump has cited as a precedent justifying his own policies. Such discriminatory policies are consistent with his efforts to capitalize on white racial resentment and identity politics. Here too, Trumpism is very similar to the agenda of European far-right nationalists.”

Stepping back, Somin explains why, in the medium to long run, a Trump loss may well be better for movement-conservative judicial preferences than a Trump victory:

If Trump wins the election and manages to recast the GOP in his image, the types of judges the party appoints will also change. And a president who is perceived as politically successful usually has a substantial impact on his party’s agenda, as other politicians will seek to mimic his platform...

If Trump loses, on the other hand, there is a good chance that originalists who seek to limit government power will continue to have a strong influence on the party’s judicial philosophy. As long as that philosophy is the dominant view within one major party, it is likely to have a considerable impact on the judiciary and constitutional debates more generally. Admittedly, support from one party is not nearly as good as a bipartisan consensus. But it’s a lot better than being shut out from the major parties entirely. Ultimately, maintaining the long-term viability of a judicial philosophy is a lot more important than any one Supreme Court appointment, or even two or three of them. If you care about the long-term future of originalism and enforcing constitutional limits on government, you have good reason to be #NeverTrump – all the way.

For all those reasons and more (see my colleague David Frum for others), the argument that reluctant Republicans should hold their nose and vote Trump for the sake of judicial nominations is highly unpersuasive. Better to deny him the White House.