The last refuge of people who are freaking out about the #NeverTrump movement is the idea that, if Trump is nominated, it will be important to let Donald Trump pick Scalia’s replacement (and presumably at least one other SCOTUS justice, given the age and health condition of the current occupants of the bench). Cue Hugh Hewitt:
The anti-@realDonaldTrump hysterics r over the top. If he is nominee GOP will support. SCOTUS in balance.
— Hugh Hewitt (@hughhewitt) February 27, 2016
With all due respect to Hugh, this particular scare tactic (which is doubtless effective with respect to almost literally any other Republican) just doesn’t hold water with respect to Trump. Based on Trump’s own pronouncements, his judicial philosophy is easily worse than Hillary’s, and I don’t even have to bring his remarks about his radical pro-abortion sister into this to prove the point.
The last 8 years have demonstrated that the key fight in the Supreme Court right now is the fight over the proper scope of Executive power. Obama has shown the path for future Presidents who want to disregard Congress and unilaterally pass laws on their own. The only thing even sort of keeping Obama in check at this point is the Supreme Court’s willingness to rule his increasingly breathtaking power grabs unconstitutional.
As much as Obama has attempted to arrogate to himself the constitutional authority of the Legislative branch, he is an absolute piker compared to Donald Trump’s own public statements on the matter.
For instance, however bad Hillary Clinton’s judicial philosophy might be, it isn’t bad enough to think to say this shockingly totalitarian thing in public:
This statement, though, is really of a kind with dozens more like it on the campaign trail in which anyone who dares to challenge Trump’s authority to do anything is met with threats.
Trump has literally never on the campaign trail expressed a belief that the power of the executive – as wielded by him – should be limited in any way. While he’s made vague mention of Obama’s unconstitutional executive orders, he’s not attacked them for the fact that they’re unconstitutional abuses of power, but rather only that they’re wrong on policy. You never hear Trump say – as both Cruz and Rubio do – that even if they agreed with Obama on the policy, the President simply doesn’t have the power to do what Obama has done.
Moreover, Trump’s signature statement on the campaign trail, his idiotic assertion that he will make Mexico pay for the wall by starting a trade war with Mexico, illustrates a total disregard for Congress’s clear and exclusive power to regulate foreign trade, as set forth in Article I, Section 8 of the Constitution. Like roughly 90% of the things Trump promises, his policy cannot be accomplished without a gross abuse of power.
Trump himself admitted during the last debate that he thinks judges “sign bills,” and after the last debate he also admitted that he wouldn’t really know where to begin in terms of what questions to ask to make sure that any judge he nominated was conservative. You can bet, however, that the first time the Supreme Court tells him that he “can’t” do something that he wants to do, he will immediately begin asking all his judicial nominees, “Hey, let’s say I wanted to do X. Would you vote to stop me?”
If you want to convince conservatives to vote for Trump, you’re going to have to come with better material than scaring us about SCOTUS justices. Because the type of person Trump would nominate would be even more frightening to conservative sensibilities than whoever Hillary might dig up.