Donald Trump’s Supreme Court list continues to dominate conservative discussion, at least the discussion that I follow. John Yoo strongly commends the list but worries that Trump won’t appoint anyone from it, or anyone comparably conservative.
It is a legitimate concern. Trump has not said he will nominate someone from the list to fill the Scalia vacancy. Instead, he stated: “The following list of potential Supreme Court justices is representative of the kind of constitutional principles I value and, as President, I plan to use this list as a guide to nominate our next United States Supreme Court Justices.”
This gives Trump wiggle room. He has not promised to nominate someone from the list, and the question of who is “representative of the kind of constitution principles [he] value[s]” will always be up for grabs.
Note too that Trump’s statement differs from what he said in March. Then, he declared: “I am going to give a list of either five or 10 judges that I will pick, 100 percent pick, that I will put in for nomination.” (Emphasis added) Trump explained that he needed to be definitive because otherwise “some of the people who are against me” will say “we don’t know if he’s going to pick the right judge.”
Having put out a less than definitive list yesterday, it’s reasonable for people, whether they are for or against Trump, to wonder whether he will “pick the right judge.”
More likely than not, he will. If Trump is elected, he will not want to begin his presidency by alienating conservatives on the main issue he has used to woo them. If the GOP’s conservative base concludes that it can’t trust Trump on anything, his presidency will be arduous, indeed.
However, as Ramesh Ponnuru points out, Trump also may not want to begin his presidency by warring with Democratic Senators over a Supreme Court nominee. Thus, it’s distinctly possible Mr. Art of the Deal would make one with the Dems when it came down to nominating the next Justice.
But even the product of a deal with the Dems (say, a Justice Kennedy or Justice O’Connor type) would be much better for conservatives than a Hillary Clinton nominee. Thus, if we try to handicap this, I think it’s more likely than not that Trump would nominate a solid conservative and less likely than not, but quite possible, that he would nominate a centrist. The odds of him nominating a leftist seem de minimis.
With Hillary Clinton, by contrast, it’s certain that the nominee would be a leftist, the only question being how far left. And that goes not just for the Supreme Court, but for nearly all court of appeals and district court nominations.