Donald Trump is in an unusual position for a major party’s presumptive nominee. His first task since effectively locking down the nomination is to convince many of his fellow partisans that he is up to the job.
A common refrain from conservative Trump skeptics is that Trump’s biggest flaw is that he may not be conservative enough. As the National Review wrote in an editorial that now stands as a monument to that publication’s impotence, “Trump has shown no interest in limiting government, in reforming entitlements, or in the Constitution.” Trump, however, is behaving like a man who is very much aware of the last of the National Review’s complaints — the one that he is insufficiently committed to a conservative reading of the Constitution — and who is determined to show his fellow partisans that they can trust him to nominate Supreme Court justices that will make his party’s right flank smile, including whoever Trump would nominate to fill the current vacancy on the Court.
Trump’s latest effort to assure conservative voters that he’s just like all those other Republicans when it comes to the judiciary happened Tuesday evening, in an interview with Fox News’ Bill O’Reilly. “I’ve become pro-life; I was, in a meek fashion pro-choice,” Trump claims in response to a question about what he will do to “protect the sanctity of human life.” Then he tosses the red meat Republican base voters are looking for.
“I will protect it,” Trump tells O’Reilly, referring to the host’s question about the “sanctity of human life.” “And the biggest way you can protect it is through the Supreme Court and putting people on the Court.”
Trump, it should be noted, was not “meek” about his previous support for a woman’s right to choose. In a 1999 interview, he said that while he “hate[s] the concept of abortion,” he is “very pro-choice,” that he would not ban even an especially controversial abortion procedure, and that he is “pro-choice in every respect.”
Nevertheless, Trump is hardly the first Republican presidential candidate to switch positions on abortion depending on what was in his political best interests. In 1994, for example, a Massachusetts candidate for the U.S. Senate named Mitt Romney said that he believes that “abortion should be safe and legal in this country.” Romney offered a very different view of abortion later when he needed to appeal to Republican primary voters.
Trump’s pledge to appoint anti-abortion justices, moreover, is hardly his only effort to make nice with conservatives eager to regain a majority on the Supreme Court. Last February, Trump told the Christian Broadcasting Network’s David Brody that the Court’s embrace of marriage equality was “a shocking decision.” The Republican candidate added that he was “very much in favor of states’ rights” and would rather let each state decide whether same-sex couples are entitled to the equal protection of the laws.
In December, Trump named Justice Clarence Thomas as his favorite justice, and he criticized Chief Justice John Roberts as insufficiently conservative.
Roberts, the justice Trump views as not conservative enough, authored a decision neutering a key prong of the Voting Rights Act. He joined the Court’s decision in Citizens United v. FEC relaxing campaign finance restrictions. He authored a decision legalizing certain forms of money laundering by campaign donors. He’s empowered corporate defendants with new ways to avoid lawsuits. He voted to give religious objectors unprecedented ability to limit the rights of their employees. And Roberts’ race decisions often show impatience with the fact that many civil rights laws still exist.
Thomas, meanwhile, would go much further than Roberts. In addition to voting to strike down the Affordable Care Act (conservatives’ grievances with Roberts often begin and end with his refusal to hobble this one law), Thomas embraces a narrow reading of the Constitution that was used to strike down child labor laws in the early twentieth century. This same interpretation of the Constitution would also strip away Congress’ power to enact most bans on discrimination.
Nor has Trump simply praised Thomas and rejected Roberts. Shortly after the death of conservative Justice Antonin Scalia, Trump named Judges William Pryor and Diane Sykes as potential Supreme Court nominees. Both are very conservative judges who frequently appear at events sponsored by the conservative Federalist Society. Both have also expressed very conservative views on reproductive freedom, on the rights of religious objectors, and on the power of state lawmakers to prevent voters who are more likely to support Democrats from casting a ballot.
Trump has even gone so far as to say that he is working with the conservative Heritage Foundation on a list of judges that he will use to select his future Supreme Court appointments — although it is worth noting that he has yet to release this list.
On the other side of the ledger, Trump did make one comment early in his campaign that gave conservatives heartburn over his plans for the Supreme Court — he said that his sister, left-leaning federal appeals court Judge Maryanne Trump Barry, would make a “phenomenal” justice. It’s unclear whether this was a intended to be a window into Trump’s views, however, or merely an expression of brotherly pride. In any event, Trump has since gone out of his way to embrace judges who are far more conservative than his sister.
So what should voters take from all of this? It’s certainly possible that Trump is lying about his desire to appoint conservative justices. It certainly wouldn’t be the first time that Trump was flexible with the truth.
At best for voters who do not wish to see more Scalia’s on the Supreme Court, however, Trump’s record on the judiciary conveys the message that he doesn’t actually care all that much about who serves on the federal courts. And the savviness of his appeals to conservatives interested in the judiciary — William Pryor and Diane Sykes aren’t exactly household names, but they are well-known and widely admired in Federalist Society circles — suggests that Trump has surrounded himself with the sort of people who care a great deal about moving the courts to the right. That’s a recipe for some very conservative appointments if there is a Trump administration.