In today’s LA Times, Jeremy Rabkin (of George Mason’s Scalia Law School) and I argue that keeping the Court conservative is not enough to vote for Donald Trump. Many conservatives explain away the Republican nominee’s latest gaffe by pleading for support on the ground that the next President will choose Justice Scalia’s replacement and perhaps one or two more.
We make three points. First, the foreign and security challenges facing the country are far more important than appointing a justice. Second, we cannot trust Trump to appoint conservatives to the Court. Third, control over constitutional law had already slipped from the hands of conservatives even before Justice Scalia’s passing. Appointing his successor won’t change the Court’s support for gay marriage, abortion, and affirmative action, for example.
When the history of age is written 100 years from now, we don’t want scholars to say: Trump pulled the U.S. out of NATO, ended the NAFTA and WTO free trade agreements, and withdrew our troops from Korea, Japan, and the Middle East. But he kept the Supreme Court 5–4!