Since Justice Anthony Kennedy announced his retirement, I have repeatedly heard some version of the following from conservatives who declined to back the Republican presidential nominee in 2016: If I had known that Donald Trump would keep his promises on judges, I would have voted for him.
In replacing the late Antonin Scalia with equally conservative stalwart Neil Gorsuch, and with the opportunity now to replace Kennedy with a more reliable conservative vote, President Trump has the chance to shift the nation's highest court rightward for a generation. But he also has an opportunity to fill a more immediate political need: consolidating his support among the Republican base and further marginalizing what's left of the "Never Trump" right ahead of the midterm elections, where turnout is critical.
As Trump's job approval ratings among Republicans approach George W. Bush's post-9/11, it may seem unnecessary to settle this intra-party feud. But what Never Trumpers lack in numbers they more than make up for in influence — as columnists, television commentators, and GOP political operatives. And these elite anti-Trump conservatives really do speak for a much larger constituency who have always had serious reservations about Trump but voted for him anyway, however reluctantly.
During various low points of the Trump administration, anti-Trump conservatives tweaked the president's Republican defenders for answering every (justifiable) criticism of the president with "But Neil Gorsuch!" However, after the recent 5-4 rulings on public sector unions, religious liberty, and other contentious issues, "But Gorsuch" is sounding like a stronger argument. And if Trump can do Ronald Reagan one better by actually getting a reliable conservative to fill Kennedy's seat, he will have delivered where Republicans who are more personally virtuous and devout have long failed. In so doing, Trump is building his political capital with social conservatives, despite comments and personal conduct that has the potential to embarrass them, as well as the fact that the organized religious right mostly supported Ted Cruz in the primaries.
The conservative case against Trump was always two-fold: His personal flaws would cripple his presidency and discredit conservatism, and he was more of a liberal Trojan horse than a true conservative anyway.
For some, this latter part was a bit of a cop-out. Trump nevertheless had a long enough record of espousing moderate to liberal positions on issues of importance to conservatives that this wasn't an unreasonable argument.
You could even now make a solid case that Trump's record on spending and the debt isn't conservative. But that is true of plenty of Republicans who Never Trumpers supported. Meanwhile, Trump has been better for conservatives on judicial and social issues than we had reason to expect, and he has aggressively cut taxes and regulations. Overall, the personal criticisms of Trump have held up while the ideological objections so far have not.
Maybe the long-term damage Trump does to conservatism's brand outweighs his contributions on judges. But that is a tougher case to make than simultaneously arguing Trump is too liberal and too flawed. And that's why the Never Trumpers still seeking to discredit Trump's conservatism on judges, like former Republican strategist Steve Schmidt and Washington Post conservative Jennifer Rubin, sound an awful lot like liberals.
Provided the president nominates a conservative judge, it will be hard for conservatives in good standing to oppose him or her — and a confirmation would give Trump a solid claim to a respectable conservative legacy.
All of this could be completely undone by developments in the Trump-Russia probe or an economic downturn (especially if precipitated by trade wars) or a blowout in the midterm elections, to name just a few scenarios that could vindicate the Never Trumpers' political judgment. With the Supreme Court weighing in the balance, however, at the moment conservatives are getting quite a lot out of their deal with The Donald.
