The last scare tactic that the reluctant Trump adopters use against those of us who are still stubborn Trump refuseniks is the threat of Hillary Clinton appointing Supreme Court Justices. On a surface level, it’s an effective appeal to pragmatism, because Hillary really and truly will appoint some horrible Supreme Court justices.
But the assumption that Trump’s judges would be any better seems to ignore his many public pronouncements that reveal his judicial philosophy. As but one example, Trump appears to be an ardent opponent of the First Amendment, even in concept, as he revealed in a tweet this morning:
It is not “freedom of the press” when newspapers and others are allowed to say and write whatever they want even if it is completely false!
— Donald J. Trump (@realDonaldTrump) August 14, 2016
Yeah dude, it exactly is. Or more precisely, it encompasses the idea that judges are not in a position to pass on the truth or falsity of claims or statements made in the political context. If Trump says a given regulation is costing 100,000 American jobs, and the press says we have this study that says it’s actually only costing 25,000 jobs, it isn’t the job of a judge or jury to determine who is right or who is wrong in either a criminal or civil context. This is for the voters to decide. And the idea that the press can be sued or prosecuted for criticism of Trump is the most hostile rejection of the entire concept of the First Amendment as you will ever hear a candidate make.
Trump’s conception of the concept of Freedom of the Press is literally, and without exaggeration, the old Soviet position of freedom of the press: the press is as free as they want as long as they only things that aren’t “lies”; and by the way, “lies” are distinguished from “truth” exclusively by the authority of the State.
Nor was this comment an isolated event for Trump:
“One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected,” Trump said.
Trump has of course offered his much ballyhooed list of 11 judges, which he still occasionally dusts off on the trail when he needs to play to the rubes. When in front of other audiences, he says these names are “mere suggestions” and he would of course feel free to nominate anyone he wanted.
Good, conservative judges do not grow on trees. It takes a candidate possessed of understanding of constitutional principles and dedication to conservative judicial philosophy to even possibly nominate a solid conservative to the bench and shepherd their nomination through the confirmation process.
Trump, on the other hand, displays almost none of those impulses. When he varies from the talking points his campaign has assigned him to signal that he is sound on judges, you see his true impulses seeping through. And his true impulses are authoritarian, opposed to liberty, and mostly concerned with what he will be able to get away with doing when he is President. The most important question that a President Trump would likely ask of any judicial nominee would be, “what would you vote to prevent me from doing?” and the candidate who has the shortest list probably gets the Trump nod.
Such a judge would, of course, be the very worst sort of judge – probably worse even than ideological liberals who nonetheless have shown willingness to check the worst abuses of power of the Obama administration. A Trump favored judge would never say no to the ever-expanding infringement of the federal Executive branch on the rights and prerogatives of other branches and – even worse, on the rights and prerogatives of American citizens.
I definitely would like to avoid any judge nominated by Hillary, but if the cost is a judge nominated by Trump, I think I have to pass.