John Yoo's Reasoning on Trump and the Supreme Court

John Yoo, the former Bush administration Justice Department lawyer best known for his supposed “torture memos” regarding the war on terror, has a great answer to the Trumpskyites who trot out the Supreme Court as a justification for voting for the Great Trumpkin.  Published as an op-ed in the Los Angeles Times, he basically lays out the case that fears over the Supreme Court are not a good enough reason to vote for Trump.


He starts out by laying the case against Donald Trump on the international scene.  As many of us have said, while he is shaking up the world order, he claims he will be nominating conservative Justices to the Supreme Court.  Then he lays bare the concerns we have with Trump:

But no one should rely on his vague promises.  He has already flip-flopped on numerous core issues, such as the minimum wage, tax rates and entitlement reform.  Even when he announced his list of judges in May, Trump would not be pinned down.

There is no arguing with that logic.  He cites the fact that Republican Presidents have filled 12 of the last 16 vacancies on the Court and only four could be counted as truly conservative- Rehnquist, Scalia, Thomas and Alito.  A .333 batting average in baseball may be good, but NOT if you are attempting to change the direction of the Supreme Court.

Trump is also ignorant of the fact that the Senate which actually be in control of the Democrats has to confirm any nominee.  But then again, Trump does not even know how many Articles there in the Constitution and believes Federal judges could “investigate” Hillary Clinton.  Does Trump honestly believe they would confirm a strong conservative?  As Yoo succinctly states:


Trump’s outbursts won’t persuade the Senate to embrace more conservative nominees, where Reagan’s sunny optimism and George H.W. Bush’s patrician decency failed.

He notes that it was Kennedy, a Republican appointment, that cast the deciding votes in Fisher basically upholding racial preferences in college admissions, in the Texas abortion case (the vote was 5-3, but Trump thought that the outcome would be different if Scalia were alive and the vote was 5-4…duh!), and in Obergfell.  It was Roberts, a Republican appointment, who cast the deciding vote in the Obamacare case.

He further states:

Recent history shows that even conservative appointees flinch from upholding constitutional norms when they fear it will provoke a strong political response against the court. Trump will not be able to change this depressing reality.

This is very much true and Roberts in particular is very touchy about how the Court is viewed by the public.  That likely explained his twisted logic in the Obamacare case when he states that the law cannot stand under the Commerce Clause, then goes on a convoluted series of pages transforming the case into a mundane tax law one.  In the process, he injects the notion that Washington’s taxing authority is without limit.


Yoo’s solution is not a vote for Trump which would be a Supreme Court nomination crap shoot given recent history and what we know and do not trust about Trump.  The solution is to make sure Constitutionally principled candidates are chosen, worked for, and elected to all levels of government.

Obviously, putting the words “Donald Trump” and “Constitutionally principled candidates” in the same sentence would be a classic oxymoron.  Yoo does not endorse nor condemn the Trump candidacy, but merely skewers this line of reasoning to vote for Trump.  If that is all they have, then they haven’t much.


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