Donald Trump is not a kumbaya guy.
So while he urged Republicans during Thursday night’s presidential debate to come together and embrace the “outpouring of love” his supporters have brought to the GOP, Trump also made a fear-based pitch for party unity by raising the specter of Hillary Clinton or Bernie Sanders shaping the Supreme Court for a generation.
“These are people that will win us the election and win it easily,” Trump said of the new voters he has drawn to GOP primaries. “These are people that, once the election is won, we’ll be able to put Supreme Court justices up that will do a fabulous job. Because let me tell you, if we lose this election, you’re going to have three, four or maybe even five justices (appointed by Democrats) and this country will never, ever recover. It will take centuries to recover.”
Many in the Republican establishment and conservative commentariat have come unglued over Trump, with some vowing not to support the polarizing part-time Palm Beacher if he’s the GOP nominee.
As Trump has moved closer to the nomination, he’s been warning Republicans that if they sit out the general election, or if they get behind a third-party candidate, the consequences would be decades of “very, very, very liberal judges” on the high court.
“Anybody that does the third party…it guarantees, 100 percent guarantees, the election of the Democrat,” Trump told reporters this month as the #NeverTrump movement began to get attention. “That means the appointment of Supreme Court judges — three, four or five. That is a total wipeout for conservatives and for Republicans. So start thinking about that. Start thinking about that.”
The Supreme Court argument might carry some weight with Republicans who don’t like Trump, says Trump critic John Stemberger, the Orlando attorney and conservative Christian activist who heads the Florida Family Policy Council.
“If we are faced with Hillary vs. Trump I think that’s the primary argument that could be made to vote for him,” said Stemberger, who said he hasn’t decided whether he’d support Trump in a general election. “We know what kind of judges Hillary might appoint. But there’s a chance we might get better judges with Trump. But really it’s anybody’s guess. He’s been so sporadic.”
In a Republican debate Feb. 13, the day conservative Supreme Court Justice Antonin Scalia died, Trump mentioned conservative appellate Judges Diane Sykes and Bill Pryor as potential Supreme Court nominees.
Frequent Trump critic David McIntosh, who heads the conservative Club For Growth, called Pryor and Sykes “good judges.” But he dismissed Trump’s mention of them as pandering.
“He probably has no idea what he would do. He started out saying his sister would be a good Supreme Court justice,” said McIntosh.
Trump raised alarms with conservatives last year when he was asked about his sister, Judge Maryanne Trump Barry of the U.S. 3rd District Court of Appeal, and said she would make a “phenomenal” Supreme Court appointee.
Barry was appointed to the federal bench by Republican President Ronald Reagan in 1983 and elevated to the appeals court by Democratic President Bill Clinton in 1999. She drew fire from the right when she authored a 2000 opinion overturning a New Jersey law that banned late-term “partial-birth” abortions.
The opinion Barry wrote in that case called the New Jersey law “a desperate attempt to circumvent over 25 years of abortion jurisprudence.” Conservatives argue Barry’s opinion introduced arguments that went beyond a Supreme Court ruling that had struck down a similar law in Nebraska.
Conservative Supreme Court Justice Samuel Alito was on the appeals court with Barry at the time and concurred in the judgment. Trump mentioned Alito in a Feb. 25 debate in which he referred to the abortion decision as a “bill.”
“You know who else signed that bill? Justice Samuel Alito, a very conservative member of the Supreme Court, with my sister, signed that bill,” Trump said.
While Alito did concur in the court’s judgment, he also wrote an opinion at the time that began: “I do not join Judge Barry’s opinion, which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court’s decision (in the Nebraska case). Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent.”
Many conservatives have also faulted Trump for supporting the Supreme Court’s 2005 Kelo decision, which expanded the ability of governments to use eminent domain to seize property for private development projects if those projects are deemed to have a public benefit.
“He’s consistently said yes, government should take property from one owner and give it to a developer,” Club For Growth President McIntosh said. “To me that destroys private property rights.”
Trump has been a harsh critic of Supreme Court Chief Justice John Roberts, who was appointed by Republican President George W. Bush. While generally regarded as conservative, Roberts disappointed the right by joining liberals in two rulings that upheld the Affordable Care Act.
Trump has used Roberts’ appointment to blast one of his rivals, Texas Sen. Ted Cruz. Cruz supported Bush’s nomination but said recently he would have preferred J. Michael Luttig, a conservative former appellate judge.
Cruz, seeking to consolidate conservative support against Trump, has argued that the author of “The Art of the Deal” can’t be trusted to choose conservatives to the court.
“What Donald has told us is he will go to Washington and cut a deal,” Cruz said in a debate last month. “So that means on Supreme Court, he’s going to look to cut a deal, rather than fight for someone who won’t cut a deal on the Constitution, but will defend it faithfully.”
Political consultant and longtime Trump friend Roger Stone said the examples of Roberts and David Souter, an appointee of former Republican President George H.W. Bush who ended up voting with liberals on many cases, have made Trump determined to nominate conservatives who won’t disappoint the right.
“There’ll be no David Souters. There’ll be no John Roberts,” if Trump is president, Stone said. “He’ll look at every decision a judge has made and if he’s made one bad decision, he’s off the list. He’ll take no chances. Trump is above all a hard-line law-and-order guy.”