Trump was led to a pro-life position by his determination to exploit Scalia’s vacancy as a campaign issue, not because he had suddenly become a pro-lifer.
I agree with Michael that Donald Trump is effectively renouncing what will be remembered as the greatest legacy of his presidency, the overturning of Roe v. Wade — a legacy that results directly from his naming of three conservative constitutionalists to the Supreme Court. This is on-brand with Trump’s grudge politics, which always, always prioritizes vendettas and blame-shifting. Policy has never been of interest to the uber-transactional former president, so no policy achievement is immune from trashing if the trashing is useful — however fleetingly — in attacking an enemy or evading accountability for a screw-up.
(It works in reverse, too: By the logic of his habitual pandering to the Trump base, the former president ought to be a vaccine skeptic; but he is an ardent defender of the vaccines — and will slap down even Trump devotees who question their efficacy. This, of course, has nothing to do with policy or scientific merit; it’s simply because he is personally credited with the rapid development of vaccines, relying on this to argue that (a) he, not Biden, eased the pandemic, and (b) rapid vaccine development outweighs his Covid-management missteps that turned a decent shot at reelection into a loss.)
Where I differ a bit with Michael is in his assessment that “In his run for president, Trump decided to make a dramatic play for an Evangelical and pro-life base of voters.” Of course, that did end up happening, but only as an unintended consequence of a shrewder but cruder calculation Trump made.
When the history is written decades from now, the sudden death of Justice Antonin Scalia will be remembered as the most consequential occurrence of the 2016 campaign. Trump’s perspicacity about the power of the resulting Supreme Court vacancy as a campaign issue led him to back into the pro-life cause — not because he was deeply committed to it but because it was useful.
Circa 2015-16, I don’t think Trump knew much of anything about originalism or the conservative legal movement led by the Federalist Society. I doubt he knows much more about them now. As for his conversion to a pro-life position, even if it was authentic rather than opportunistic (count me a skeptic on that), I don’t believe Trump apprehended the nexus conservatives saw between advancing the pro-life cause and getting legal conservatives appointed to the federal courts. After all, as late as summer 2015, when he was already a candidate in the 2016 race, Trump was touting his sister, a pro-abortion federal appeals court judge, as a “phenomenal” prospective Supreme Court justice.
Certainly, then, Trump would not have grasped that the Venn diagram between the pro-life movement and the conservative legal movement is not a perfect overlay (as was recently evident, for example, in our NR in-house debate over proposed federal legislation to restrict abortion — in which Phil, Charlie, and I parted company with our colleagues). While most of us (myself included) are in both camps, the conservative legal movement rejected Roe as atrocious law that also happened to be atrocious policy; the pro-life movement rejected it as atrocious policy that also happened to be bad law.
What changed Trump and the trajectory of 2016 campaign was not any immersion by the candidate into these matters. It was Justice Scalia’s death on February 13, 2016.
By then, Trump was steamrolling to the GOP nomination, to the dismay of the Republican establishment, including the conservative legal movement, which viewed the New York magnate as perhaps the weakest candidate in the crowded field when it came to being committed to conservative policy goals. To be sure, Trump was light on judicial philosophy. It was a good applause line to say that he favored justices such as Scalia and Clarence Thomas, but if asked why, he wouldn’t have been able to tell you. Nevertheless, Trump’s political gift is an antenna finely tuned to issues that inflame voters. With Scalia’s passing, he seized on a winner: Nothing more catalyzed Republican and conservative voters than the baleful prospect that the despised Hillary Clinton would name the iconic justice’s successor. The notion that she’d pick, say, Eric Holder or someone similarly minded, was appalling. As someone who personally felt it, I can attest that nothing focused the mind of a Trump skeptic more than that.
Ironically, while Trump was canny in pouncing on the right issue, he — yet again — has his new favorite pinata, Mitch McConnell, to thank for strategy’s success. If the then-Senate majority leader had caved to President Obama’s pressure to give Merrick Garland’s nomination a hearing and vote in the Senate, Garland would probably have been confirmed, and Trump’s best campaign issue (other than Clinton herself) would have faded away.
And remember: There was a prudential case for McConnell to fold. Today, in 2023, Garland is derided on the right for his performance as President Biden’s attorney general; in 2016, though, he was as good as it could get for Republicans in terms of a Supreme Court nominee chosen by a Democratic president: a moderate (by the standards of today’s Democrats) who was then entering his mid-60s. By contrast, if Clinton won the presidency, as she was then heavily favored to do, she would likely have abandoned Garland in favor of, not Holder, but a young, progressive firebrand (Ketanji Brown Jackson was a fairly new district judge back then; even if the time was not quite ripe for her, Clinton would have nominated someone very much like her). Since the polls gave Trump little chance to win, there was a good case for McConnell to live with a Justice Garland and hope that a President Hillary Clinton would be a one-termer who got no Supreme Court picks — except, perhaps, if the ailing, elderly Justice Ruth Bader Ginsburg retired or died (as she did in 2020), in which case, Clinton’s picking a progressive to replace a progressive would not have changed the Court’s ideological balance.
Instead, McConnell rolled the dice, assessing that Clinton was a historically weak Democratic candidate, no matter what the polls said, and that the issue of who would name Scalia’s successor could rally Republicans. McConnell probably doubted Trump could beat Clinton, but he’d have a shot, and in any event, the Scalia vacancy would help Republicans campaign on the imperative of having a strong GOP Senate majority which could force Clinton to pick less-radical judges.
It was the decision to make Scalia’s vacant seat a central campaign issue that led Trump to the pro-life cause. But derivatively so. Trump first undertook to prove to conservative doubters that he was serious about his unenforceable vow to nominate judges — including Scalia’s successor — who adhered to Scalia’s judicial philosophy. He even turned to the Federalist Society and the Heritage Foundation for advice on this score. About three months after Scalia’s death — having effectively sewn up the Republican nomination, and with the one-on-one race against Clinton on the horizon — Trump put out a list of judges he planned to vet to fill the Scalia vacancy.
In Trump’s manner of simplifying things — which has its advantages in campaign messaging but doesn’t translate into mastery of policy or effective governance — the focus on Scalia led perforce to a focus on Roe and thus to pro-lifers as a voting bloc. But Trump’s background is that of a New York limousine liberal who, as Michael points out, unapologetically favored unrestricted abortion access (just like his aforementioned jurist sister).
Trump deserves credit for the three excellent justices he placed on the high Court, without whom Roe and Casey would still be the law of the United States, notwithstanding their constitutional infirmities. He was never, however, a committed pro-lifer. His New Year’s Day bashing of pro-lifers (which Ramesh dismantles here) is exactly what one would have expected from both the Trump of 2015 (by then long an advocate of abortion) and the Trump of now and forever ––delighted to subordinate a policy issue, any policy issue, as necessary to shift blame away from himself (in this instance, blame for the 2022 midterms debacle), and to disparage a political foe (in this instance, McConnell). Trump was led to the ostensibly zealous pro-life position by his determination to exploit the Scalia vacancy as a potent campaign issue, not because he had suddenly become a zealous pro-lifer.