Roughly eight percent of the Republican delegates have been doled out thus far, but evidently it’s all over but the shouting. We might as well make piece with GOP nominee Donald Trump, we’re told. Whether or not one is ready to so readily concede, I’ve already seen the message pivot on various social media platforms. Despite the fact that a majority of Republican voters do not like or simply loathe the man, the quadrennial ritual is about to take place. Yes folks, it’s time for another lovely round of “Vote Republican in November or else.”
Oh I’m just as guilty as anyone as playing this game before. I almost made it through 2012 myself before regretfully folding and pulling the imaginary lever for Mitt Romney (more on that later), and I did the same for McCain in 2008. I’ve made the same arguments now being put forth by Team Vote GOP or Die, so I understand them. I personally find it rather amusing that the same people who have kvetched the most about this strategy in the past are now the ones wielding it, but so be it.
There are two core arguments being put forward as to why we need to get in line for Trump: the courts, and “OMG! Hillary!” (Yeah, Bernie too, but establishment Democrats are ironically better at putting their thumbs on the scale to thwart grassroots sentiment than the not quite so Machiavellian GOPe, so forget him for the time being).
Normally I’d fall in line with this way of thinking, but not this time. Let’s address the courts first.
Antonin Scalia’s death has made the Supreme Court, and the corresponding presidential appointment power, even more pressing of an issue than it normally is. Assuming Senate Republicans actually hold the line – and to their credit, I think they will – then the next president will not only choose his replacement, he or she might get to fill two other vacancies, if not more. Do we want Hillary to make those appointments? Donald Trump may not be counted on to make suitable choices, but at least with him we have a fighting chance. Sure he hasn’t demonstrated any familiarity with constitutional law, or a deep understanding of originalism, and on several high profile cases (such as Kelo) he took the anti-Constitutional side. But he will surely have the best men and women advising him, and we can trust that he will pick good people to pick good people.
To which I reply: The infinitesimal chance that Donald Trump will astutely nominate jurists whose philosophies echo Antonin Scalia, Samuel Alito, or – dare a girl dream – Clarence Thomas, does not counter all of the other negatives associated with Donald Trump. When speaking of constitutional issues Trump seems barely more coherent than a high school kid who has not done his social studies homework. It’s easy to make too much of his comment that his radically pro-abortion sister would make a “phenomenal” Supreme Court justice, but it underlines his fundamental lack of seriousness on the courts and constitutional issues. He may mouth platitudes about appointing “pro life, conservative” justices, but even when he’s trying to say things he knows his supporters want to hear, he still betrays his complete lack of understanding of what the courts are about. I don’t want “pro life, conservative” justices, I want constitutionalists who will adhere to the document as written and originally understood by its framers. Such justices would naturally decide in a manner that would overturn the social justice engineering wrought by the courts, but would also consistently vote so as to keep the courts out of other areas that are not their concern.
It’s also folly to count on Trump picking excellent advisers to assist him with these picks. We’re left hoping that he picks the right person to pick the right people. Hey, I have an idea – let’s cut out the middleman. Maybe instead of Trump we could have a president who, say, has argued (and consistently won) before the Supreme Court and thus might actually know a little but about constitutional law. Oh, I know, that’s crazy talk. Better to roll the dice, cross our fingers and pray that Trump picks the right person to pick the right person.
Even assuming Trump hits the jackpot and chooses a suitable replacement for Scalia, guess what – he’s likely gonna have to repeat that process multiple times. I would be surprised if Clarence Thomas and Anthony Kennedy don’t resign during the next Republican administration. Ruth Bader Ginsburg might try to hang on for another four years in case Trump wins, but even she might walk away. So not only are we relying on Trump getting it right to simply hold the line, we might need him to make the right call when it comes to appointing someone who could switch the court’s basic composition.
Wait. There’s more. While we focus obsessively on the Supreme Court we forget to scores of lower court appointments that will be made. As Danel Horowtiz details, less than one percent of cases make it to the Supreme Court, meaning that most cases are decided on the appellate level. And as Horowitz shows, President Obama has completely remade the lower courts.
While most people focus exclusively on the Supreme Court and how that institution has reached rock bottom with some of the decisions of the past term, the situation in the lower courts is even worse. And remember, only 1% of this country’s cases ever make it to the land’s highest court. Obama has now appointed 54 active appeals court judges, which represents 30% of the appeals court benches.
As of 2016, nine of the 13 circuits are comprised of majorities of Democrat-appointees. In totality, there are 92 Democrat circuit judges, 77 GOP judges, and 10 vacant seats. The all-important D.C. Court of Appeals—the second most important court in the land on constitutional issues—is now 7-4 majority Democrat-appointees, with four judges appointed by Obama alone.
On the district level, Obama has now appointed 260 judges, 39% of the federal district bench.
Even if we trusted to Trump to somehow have a better batting average of appointing constitutionalists to the bench than Ronald Reagan and the Bushes, it probably won’t matter. The courts are so fundamentally broken that even appointing the right people – which we can’t even trust Trump will do – won’t solve anything.
Which brings us to the final point. The judiciary has usurped the legislature’s role in deciding social issues. It has become a super legislature, far beyond anything imagined by the framers of the Constitution. Even if the courts decided rightly on these major social issues, we should question why they are even deciding so many of these issues in the first place. Major judicial reform is necessary, including such ideas as jurisdiction stripping. While I wouldn’t expect even a President Cruz to succeed in this arena, at least not as thoroughly as one would hope, there is no chance in Hades than a President Trump will get behind any initiatives to reform the judiciary. In the end, the courts are simply too far gone to think that electing Donald Trump can make any difference whatsoever.
Which brings us to the “but Hillary” argument. Yes, Hillary Clinton is a sociopathic, charisma vacuum who would almost literally (maybe not almost) kill someone who stood in her way of obtaining office. She has no scruples, would say anything to get elected, lies as easily as any of us breathe, and is a doctrinaire leftist.
But I also kind of just described Donald Trump (except for the charisma thing – I’ll give him that).
Phillip Klein laid out a pretty exhaustive list of Trump’s political failings. It’s hard to see in this list precisely where he’s markedly better than Hillary Clinton. In fact both are political chameleons who seem to thirst after power, and will do and say anything to attain that power. In the end, President Clinton or President Trump will do nothing to repeal Obamacare, and both seem to be fine with ideas to further socialize health care. Neither is going to reign in the judiciary, nor are they going to halt the expansion of executive powers. And on and on.
As mentioned above I held out for much of 2012 before finally succumbing to the “he’s better than Obama” argument as applied to Mitt Romney. The thing is, Mitt Romney is Edmund Burke, Barry Goldwater, and Ronald Reagan rolled into one compared to Donald Trump, not to mention his clearly superior moral character. Mitt Romney, for all his faults, truly was a superior alternative to Barack Obama. I cannot say the same about Donald Trump as compared to Hillary Clinton.
So that is why no amount of pleading will ever get me to vote for Donald Trump. If it makes you feel better I live in a state that has zero chance of going Republican in a general election, so it also won’t matter. As I said in my previous post, Donald Trump actually could and maybe even likely will defeat Hillary Clinton. God help our nation that this is our choice.
NB: If Tuesday goes as poorly as I fear it might, this will be my final post on presidential politics until election day in November. I don’t think I can stomach eight months of coverage of these two fundamentally loathsome human beings.