“It’s the Supreme Court, stupid!”

Last updated on: October 12, 2016 at 10:48 am by Dan Peterson

“It’s the Supreme Court, stupid!” 2016-10-12T10:48:49-06:00 Dan Peterson

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The Washington DC seat of the Supreme Court of the United States
(Wikimedia Commons public domain)

Perhaps the best reason I’ve seen for supporting Mr. Donald J. Trump is that he offers hope, at least, of appointing constitutionalist judges to the Supreme Court of the United States. Mrs. Clinton, by contrast, guarantees the nomination of leftists.

There is, however, little real merit to this argument, as Ian Tuttle already argued back in August:

“The Supreme Court Is Not a Sufficient Reason to Vote for Trump”

(Please note, incidentally, that the two pro-Trump writers that Tuttle cites — lawyer and commentator Hugh Hewitt and Evangelical theologian Wayne Grudem — have now rescinded their endorsements of Mr. Trump, with Hewitt actually calling for Mr. Trump to resign as the Republican nominee.)

In the past few days, however, Mr. Trump has demonstrated beyond reasonable question that he isn’t serious about wanting to place conservative judges on the federal bench. How has he done so? By declaring open war on those Republican legislators who have criticized him — notably including Paul Ryan, the Speaker of the House, who actually, however tepidly, still endorses him:

“Trump’s Campaign against the GOP”

But a President Trump, if he really cared at all about enacting a conservative, constitutionalist agenda would need a Republican Congress to back him in that enterprise. (The Democrats surely won’t!) And, most specifically, he would need a Republican-majority Senate to confirm strict-constructionist nominees to the federal court system and, especially, to the Supreme Court.

But . . .

“Trump Doesn’t Care Whether the GOP Keeps Congress”

“What Good Will Trump SCOTUS Nominees Be if There’s No GOP Senate to Confirm Them?”

Unfortunately, on this issue as in so many other respects, Mr. Trump is a fraud, a phony. His promise to appoint conservatives to the Supreme Court was frivolous and isn’t to be trusted. He has never, ever, in his entire life, demonstrated any actual commitment to conservative principles. It is inconceivable that he would be willing to invest much energy or political capital in what, even with a Republican Senate majority, would inevitably be a bruising battle — but, with Democratic rule in the Senate, would be a manifest impossibility.

Thomas Lee, a member both of the law faculty at BYU and of the Utah Supreme Court, is the brother of United States Senator Mike Lee. (Both are sons of the late BYU president, founding BYU law school dean, and Solicitor General of the United States, Rex Lee.) Justice Lee is among those touted by Mr. Trump, under some pressure, as people “like” those he might consider for the Supreme Court. Once, in fact, Mr. Trump even suggested (in a rather painfully obvious bid to gain Senator Lee’s endorsement) that he would consider Mike Lee himself for the Supreme Court.

It’s noteworthy, with that in mind, that Senator Lee, the judge’s brother, has nonetheless refused to endorse Mr. Trump for the White House and, in fact, has now called for Mr. Trump to surrender the Republican presidential nomination.

If, with those two very personal incentives for taking Mr. Trump seriously with regard to the Supreme Court, Senator Lee still doesn’t support Mr. Trump for the presidency of the United States, there seems little reason for the rest of us to support him because of the Supreme Court.

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