Arguably the most prominent argument made by pro-Trump conservatives is that Hillary Clinton will load up the Supreme Court with activist liberals if she’s the President. This is partially true, but there’s a more important thing to consider: the scenarios. Let’s look at those scenarios to understand why the best-case-scenario among likely outcomes in this election cycle for the Supreme Court is if Trump loses by a huge margin.
First, we have to understand the dynamic behind how Supreme Court Justices make it to the bench. It’s a three-step process that starts with the President and ends with a vote by the Senate. The process is detailed nicely by Paul Caputo. The important thing to note is that control of the Senate by a particular ideology will have a huge impact on the confirmation of Supreme Court Justices today and going forward. It didn’t used to be that way; even originalist Antonin Scalia was confirmed 97-0 in a day when Senatorial decorum character rather than ideological reasons for blocking a nominee. Today, decorum will only play a small role. Character will still be an issue, but partisanship will be the deciding factor.
In other words, for a President to get an extreme ideologue in one direction or another such as Clarence Thomas or Ruth Bader Ginsberg, he or she would need the Senate to be controlled. Otherwise, we’ll see Justices in the ideological center such as Anthony Kennedy, a Reagan appointee who is technically a Republican but whose voting record puts him slightly left of center.
With that understood, let’s look at the scenarios:
- Tight Race to the End: It doesn’t matter who wins if the polls are close going into election day. The way the Senatorial map is currently aligned, the risk of Trump being elected will propel Democrats to vote in fear and many Independents will “hedge their bets” on Trump by voting for the Democrat in their Senate races. Illinois (Mark Kirk) and Wisconsin (Ron Johnson) are currently very much at risk while five other Republican-controlled seats are considered toss-ups by 270towin.com. By comparison, only Harry Reid’s seat is considered a toss-up for the Democrats and no other Democratic Senate seats are even at risk.
- One Candidate Leading Heavily: Unless Hillary “Teflon” Clinton can somehow have something stick to her that would compel voters to switch to Trump, the chances are high that she would be the candidate that is heavily favored if either candidate would be. Then again, this is a crazy election year, so discounting Trump leading big going into election day is not impossible. This being a year where voters are going against the other candidate rather than for their own party’s candidate, it’s very likely that a big lead in either direction would yield a Senate majority for the opposite party. If Hillary is winning big, it could be enough for the GOP to retain the Senate. If Trump is winning big, the Senate will be controlled by the Democrats in a big way.
Now, the argument by Trump supporters would be that the risk of losing the Senate is even more incentive to push for him to win. If we’re playing the odds, that’s simply not the case. The electoral map itself heavily favors Clinton. Again, she can have a major misstep, but let’s be honest. She’s made it through pretty much every scandal over the last two decades with barely a scratch on her armor of deceit. If we couldn’t take her down with Benghazi or the email scandal, we’re probably not taking her down at all. As such, the lack of understanding by average Americans of how the electoral college works means that the worst-case-scenario is Trump staying close in national polls to scare control of the Senate into Democrats’ hands while Hillary wins the actual election. That would yield conservatives’ worst nightmare: President Hillary and Senate Majority Leader Chuck Schumer turning the Supreme Court into a liberal mess.
Let’s say that the polls are close and Trump wins. Some would say, “Yay!” The GOP would lose the Senate in that scenario, but at least we’ll have his list of conservative judges to throw at them until they confirm one, right? Wrong. Trump is a deal-maker. He hates losing. He’s also a liberal on most issues outside of immigration (sorry, Trump fans, but it’s true). His magical list of conservative judges is paper. If there’s one thing he’s proven in his life and particularly throughout the election process, it’s that he’ll change his mind whenever it suits him. Lastly and most importantly, it was completely under-reported that Trump will be adding names to his list of 11 conservative Justices:
Trump also said he’s planning to add to his list of possible Supreme Court justices.
“I’m actually going to expand it by three or four very soon,” he said, calling the candidates “fabulous.”
There is one hole open in the Supreme Court today and the potential for two or three more over the next two Presidential terms. Why would he need to add names to a list that already has 11? How many does he need?
If he wins the Presidency, he will probably lob one of the names at the Democrats in the Senate, determine that they won’t confirm a staunch conservative, and then he’ll find another Anthony Kennedy or worse. It shouldn’t shock anyone that in order to make a deal with the Democrats, he’ll even give them an activist liberal in exchange for other considerations. That’s Trump. It’s his modus operandi. He makes deals. That’s what he does.
The best way to prevent an activist liberal Justice is to retain the Senate. The only possible way for the GOP to retain control of the Senate is if Trump is losing very badly going into election day. Otherwise, Schumer will by working very closely with the liberal Democratic President from New York regardless of which candidate wins.