How Republicans will spin Trump's Supreme Court nominee
From "He's an originalist" to "Roe v. Wade? Never heard of it"
On live television tonight, President Trump will announce his choice to fill the Supreme Court seat that has been vacant for nearly a year. Barring an extremely unlikely turn of events, Republicans will proclaim this person to be the ablest judge in all the land, someone possessed of an unmatched combination of intellect and moral wisdom, with a commitment to the Constitution so firm that it would make Madison and Jefferson weep with gratitude.
Democrats, you can be equally sure, will not share this opinion. In the debate that follows, Republicans will insist that what they seek (and what they have found in Trump's choice) is not someone who will move the court in a conservative direction — they never even thought of something as crass as ideology! — but merely a devotee of the Framers' vision. So here are a few arguments that should give you pause and what they really mean:
1. "He's someone who'll interpret the law, not legislate from the bench." This was a claim conservatives long made to argue against "judicial activism," in which (liberal) judges supposedly usurped the role of the legislative branch to step outside their charge as judges and make the law as they wanted it to be. It started with the Warren Court in the 1960s, which invalidated a large number of laws, particularly at the state level, that it determined were unconstitutional. In the years since, conservatives have kept saying they abhor "judicial activism" and admire its opposite, "judicial restraint."
The trouble is that they're more than happy for judges to be as activist as they please, so long as they do so in service of conservative goals. They cheered when the Supreme Court gutted the Voting Rights Act, which was passed and then repeatedly renewed by Congress. They begged the Court to strike down the Affordable Care Act, in the hopes that it would step in and overrule the legislative branch. The right's chief complaint about John Roberts is that he was insufficiently activist in reining in the Obama administration. In short, the idea that they have a commitment to restraint that supersedes their preferred outcome in any particular case is utterly ridiculous.
2. "He's an originalist." This too is baloney, bunkum, bull — or in the words of the late Justice Antonin Scalia, supposedly the foremost proponent of originalism, pure applesauce. The conceit of originalism is that the words of the Constitution can only be held to mean what they meant to the men who wrote it. The trouble is that the courts are called upon to make all kinds of Constitutional rulings on things the Framers could never have contemplated — and that's one of the reasons that the Bill of Rights has some very specific items (the government can't quarter soldiers in your home), but also a bunch of general items ("freedom of speech") that will have to be interpreted. Trying to divine what the Framers would have thought about a current legal question is not only impossible, it becomes nothing more than a cover for taking your own values and slapping a powdered wig on top of them.
The justices themselves seem to understand this — or at least some of them do. In a 2010 case about whether the state of California could ban violent video games, Justice Samuel Alito responded to some spirited questioning by Justice Scalia by saying, "I think what Justice Scalia wants to know is what James Madison thought about video games? Did he enjoy them?" Even Scalia's usual ally found the idea of one correct "originalist" answer to the question in front of them to be ludicrous.
3. "Roe v. Wade? Never heard of it." Abortion will, without doubt, be the most debated issue during this confirmation, so we're about to start a dance that has occurred in every Republican nomination in the last few decades. In this performance, the nominee claims under repeated, specific questioning during his confirmation hearings that he might or might not vote to overturn Roe, but he can't say because it wouldn't be appropriate to comment — though you never know.
Roberts responded to questions about Roe with lengthy, vague disquisitions on the principle of stare decisis, avoiding mention of abortion entirely. Alito swore up and down that even though he had written memos advocating overturning the precedent as a lawyer in the Reagan Justice Department, "That was a statement that I made at a prior period of time when I was performing a different role," and "when someone becomes a judge you really have to put aside the things you did as a lawyer at prior points in your legal career." Scalia too insisted that the very idea that his personal feelings about abortion might influence his judgment when it came to Roe was absurd. Clarence Thomas topped them all by claiming that he was such a blank slate on the issue that he had never in his life even had a conversation about the most contentious legal issue of our age. None of the four ever voted to strike down a restriction on abortion rights.
Trump's pick will do the same, and his advocates will perform an even more bizarre gyration. Even though Trump was quite clear that he'd be picking a judge who will be a vote to overturn Roe — and that's a big reason why 81 percent of white evangelicals voted for him — now you're not supposed to say so out loud. If you doubt, look at how Kellyanne Conway pirouetted around the question last weekend on Fox News Sunday, saying that Trump's pick would be "pro-life," tossing out some phrases meant to assure abortion opponents ("I haven't heard of the word penumbra since 1973. Have you?"), but refusing repeated requests to give a yes or no answer on overturning Roe.
There's no mystery why: Around 70 percent of the public opposes overturning Roe v. Wade. If the Court does so (which would require one additional justice for the anti-Roe side), it will be one of the most radical acts in the Court's history, causing untold political upheaval. So Republicans want to pretend that's not exactly what they're trying to engineer.
This nominee will be, like everything President Trump has done to this point, aimed straight at his conservative base. It's safe to say that Trump himself doesn't particularly care about the Supreme Court. But his supporters do, and he's going to deliver them exactly what they want. We just shouldn't let them claim that's not what he's doing.