Trump, the judiciary, and this election

For the first time in decades, I am an undecided voter in a presidential election. I haven’t decided whether to vote for Donald Trump or to vote for no candidate.

Concern over what the Supreme Court (and the lower courts) will look like if Hillary Clinton wins is one of the main considerations that might cause me to vote for Trump. Thus, when I saw that John Yoo and Jeremy Rabkin — both of whom I respect and admire — had written a piece called “Filling Supreme Court Vacancies Isn’t a Good Reason to Vote for Trump,” I was eager to see what they argued. Almost as eager as I suspect the Los Angeles Times was to publish an anti-Trump piece written by conservatives.

I found the piece disappointing. Reading it, one would think the election is a referendum on Trump not a race between (effectively) Trump and Hillary Clinton.

Yoo and Rabkin begin by arguing, correctly, that “the president’s first responsibilities are to maintain national security, advance our national interests in foreign affairs and provide direction for the military.” They then point out some of Donald Trump’s deficiencies in these areas. “A Trump presidency,” they say, “invites a cascade of global crises” and “constitutional order will not thrive at home in a world beset by threats and disorder.”

All true, I think. But Yoo and Rabkin don’t address a question that’s central to me: Will Hillary Clinton do a better job than Donald Trump of maintaining national security, advancing our national interests in foreign affairs, and providing direction for the military?

If so and if her edge is significant, then it’s reasonable, and probably compelling, to argue that filling Supreme Court vacancies isn’t reason enough to vote for Trump. But if Hillary Clinton would likely be as bad or worse than Trump in the realm of national security and foreign affairs, then voting for Trump because of whom he likely would select for the judiciary seems to make sense, if his selections are likely to be materially better than Clinton’s.

Yoo and Rabkin address the question of the kinds of Justices Trump would likely select. But again, their discussion contains a big hole. It doesn’t compare Trump to Clinton.

Yoo and Rabkin argue that Trump might not keep his “vague promises” to nominate conservatives. He might not even be able to figure out who among potential nominees is conservative.

Even if he nominates conservatives, the Senate might not confirm them. Even if a conservative is confirmed, some of his or her votes on the Supreme Court might disappoint. Anyway, conservatives are overestimating the importance of the Supreme Court.

All true to one degree or another. But none of these considerations negates what seems obvious to me: (1) Hillary Clinton will nominate liberal Justices and judges across-the-board, and many of them will be hard core left-wingers, (2) Donald Trump’s nominees may be flawed in many instances, but most probably won’t be liberal and virtually none is likely to be hard left-wing, (3) the strong leftward slant of Clinton’s nominees would likely have important negative consequences for the country.

Yoo and Rabkin deny none of this.

In a follow-up piece, Yoo and Rabkin make additional arguments. They express doubt that Justices appointed by a President Trump will restrain his excesses. The doubt is legitimate. We can be nearly certain, though, that Justices appointed by a President Hillary Clinton won’t restrain her excesses.

Are Clinton’s excesses likely to be less egregious than Trump’s? Yoo and Rabkin don’t say.

Yoo and Rabkin then speculate that a Supreme Court dominated by Democratic appointees might restrain itself. What are the odds that it will show such restraint? Yoo and Rabkin don’t say. I put them at slightly above zero. The best we’ll get from that lot as they overhaul constitutional law and trample on rights in furtherance of a leftist agenda is the occasional “troubled concurrence.”

Next Yoo and Rabkin complain that Trump appointees will be unable to “shape constitutional understandings over the long term.” Thus, the Supreme Court will continue “operating on the precise fault lines of almost all our domestic political disputes” and we will continue to lack “a solid constitutional structure.”

To me, this state of affairs, though lamentable, is paradise compared to a Supreme Court under the control of Justices selected by Democrats.

I understand the view of some conservatives that Trump fails to meet the minimum level of acceptability in a president and therefore doesn’t deserve support. But if Trump’s candidacy has a serious chance of success, I’m more sympathetic to the pragmatic view that if he’d make a materially better president than Hillary Clinton, I should vote for him.

Judicial nominations are an important consideration in assessing the relative merits of Trump and Clinton, and that assessment must, by definition, be comparative. Yoo and Rabkin have not provided a comparative assessment of the two candidates either as to judicial nominations or national security/foreign policy.