The Supreme Court and the Convoluted Case for Trump

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Donald Trump’s smartest political move this year was issuing his list of prospective Supreme Court nominees. This is the ultimate “trump card” (pardon me) for white evangelical voters, it seems. Franklin Graham spoke for many when he suggested recently that the only thing at stake in this election is the future of the Supreme Court.

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Thus, such white evangelicals imply, we can ignore Trump’s history of race-baiting, infidelity, and misogyny, his lack of basic understanding of all kinds of political and constitutional issues, and the array of other problems with his candidacy, because he might appoint good Supreme Court justices.

Viewed from one perspective, this is not a ridiculous argument, and I can understand why many evangelicals are going to hold their nose and vote for Trump. We know that Hillary Clinton will appoint judges who will keep abortion-on-demand legal. Why not roll the dice on the hope that Trump will keep his word and appoint good judges?

Trump does not have a sterling record of keeping his word. Still, I would not be shocked, if he wins, if he did actually choose judges on the list. I suspect Donald Trump (unlike Clinton) doesn’t really care that much one way or the other about such social issues, so what would be the harm for him in following through?

But if we take a step back, we can see how peculiar and troubling this Supreme Court argument is. We should elect someone, the argument goes, with Trump’s record (or lack thereof), convictions (or lack thereof), and family history because he might appoint good justices to the Supreme Court.

The reason why many evangelical voters have taken this approach is partly because of the Supreme Court’s increasing encroachment into the legislative arena over the past 50 years. Can’t get enough state laws passed expanding abortion rights? Can’t wait for the states to sort out their own definition of marriage? Just hand it over to the Supreme Court, and they’ll take care of everything! And because the justices are unelected, they do not have to be responsive, as quasi-legislators, to the people’s indignation.

And so we are told over and over, in 2008 and 2012, and now most glaringly in 2016, that we must accept the GOP nominee, whatever his manifest deficiencies, because he might handle the Court’s metastasizing power the right way. It is a strange way to choose a president.

Another obvious problem with the “Supreme Court” argument is that Republican presidents over the past four decades have a poor record of appointing judges who are reliable on issues such as the right to life and religious liberty. As thankful as I am for the late Antonin Scalia’s work, not every GOP appointee is Scalia. Other than Scalia, President Reagan was not so great on choosing justices, with Sandra Day O’Connor, and Anthony Kennedy, who is surely the most powerful unelected official today in the American government. Kennedy has been the decisive vote on some of the Court’s most notorious recent decisions.

George H. W. Bush batted .500, with a good choice of Clarence Thomas and a catastrophe in choosing David Souter, who was supposed to be conservative but turned out to be consistently liberal. George W. Bush did better than Reagan or his father, on average, with the appointments of Samuel Alito and John Roberts. But let’s not forget Bush’s disastrous 2005 nomination of Harriet Miers, who withdrew after a firestorm over her views on abortion and sexuality.

Setting aside Miers, the three most recent Republican presidents had four of their seven Supreme Court appointments turn out pretty well. That’s coming from three presidents (Reagan, Bush ’41, and Bush ’43) who all had firmer, if not entirely secure, moorings in the conservative movement than Donald Trump does.

The question for white evangelicals, then, is whether we are willing to get behind a non-conservative candidate like Trump, who is so boorish, divisive, and uninformed, because he might appoint judges who can get confirmed and then actually turn out to be good judges? That’s a lot to ask, and a lot of “ifs.” I remain convinced that no major party has offered us a candidate worthy of evangelicals’ support in 2016.

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