Earlier this week, David Brooks wrote that Republicans and conservatives had made “a Faustian bargain with Donald Trump,” agreeing to tolerate all the things they may privately find disturbing about the president in return for the chance to score major wins on some of their key issues.
With the nomination of Judge Neil Gorsuch to the Supreme Court, Trump has begun delivering on his part of the bargain — and even those on the right who often criticized Trump during the campaign are beside themselves with joy.
“I couldn’t be happier with his selection," gushed Ted Cruz in a statement that called Gorsuch “a champion of federalism, the constitutional separation of powers, religious liberty, and all of the fundamental liberties enshrined in our Bill of Rights.”
“He is a phenomenal nominee for the Supreme Court,” said Speaker Paul Ryan. “His belief in judicial restraint will serve the Court — and the country — very well.”
The editors of National Review, who condemned Trump during the campaign, wrote that Gorsuch is “a fine choice. … He combines a sterling intellect and a fidelity to law.”
All this shows that in a campaign and administration that have often been haphazard and chaotic, Trump’s handling of the Supreme Court pick stands out as extraordinarily savvy.
Essentially, Trump made a deal with the right during the campaign. He knew his credentials with evangelical voters and movement conservatives were weak. He realized that those voters and activists cared deeply and intensely about who sits on the Supreme Court. And he apparently concluded that he himself didn’t care all that much.
So he offered to trade away the appointment — and it worked out remarkably well for him.
Scalia’s death struck terror in the hearts of conservatives
Since Supreme Court justices serve for life, the prospect of potential nominations is a key issue that hangs over every presidential election. But since deaths are unexpected and justices don’t announce their retirement dates much in advance, this is usually a theoretical matter. And sometimes it stays theoretical — for instance, there were no Supreme Court vacancies in Bill Clinton’s second term and George W. Bush’s first one.
But when Antonin Scalia unexpectedly died last February, the fate of the Court suddenly hung in the balance. Without Scalia, there were four conservative or center-right justices and four liberal justices. That meant the conservative majority that had existed on the Court since the early 1970s was gone, for the moment — and potentially for much longer, should a Democrat replace Scalia.
The prospect of returning to a Court with a five-justice liberal majority, which we haven’t seen since the Warren Court of the 1950s and ’60s, was the source of much excitement among liberals. It also struck terror into the hearts of many conservatives, who feared sweeping new “liberal activist” rulings.
Furthermore, there’s the issue of Roe v. Wade, the 1973 decision protecting abortion rights. Many conservative Christians in particular view abortion as murder and have long hoped to overturn Roe so states could restrict abortion more thoroughly. But despite all the decades of a conservative Supreme Court majority, they’ve never managed to cobble together five justices to overturn it. (Anthony Kennedy voted to mostly uphold it, as have a few earlier Republican appointees.) Should Scalia be replaced by a liberal, the dream of overturning Roe would have receded even further out of reach.
Conservative Christians didn’t trust Trump. So he made a deal to put their fears at rest.
Donald Trump is a brash New York billionaire on his third marriage who’s known for sexually explicit banter and who says he’s never asked God for forgiveness. So it initially seemed that he had little hope of winning conservative Christians, a key part of the Republican coalition, to his side. He had nothing in common with them, and they had little reason to trust him.
But in an effort to mollify their fears, Trump made a dramatic move that it’s hard to find a precedent for. He pledged that if elected president, he would fill the Scalia vacancy only from a name on a preselected list of judges (first 11, later expanded to 21). These lists were crafted in close consultation with conservative activist groups like the Federalist Society and the Heritage Foundation, with an eye toward ensuring these groups would be satisfied by any name on there.
Essentially, Trump was forfeiting his presidential authority to freely choose his own nominee, and instead tying his hands. Of course, some speculated that he could just break it and betray conservatives. But the pledge was so specific that it was hard to imagine him doing so without earning undying hatred from many of his supporters. And again, Trump didn’t seem to have strong feelings about judicial philosophy and what makes a good judge anyway.
The deal worked out as planned. Conservative Christians — further reassured by the choice of Mike Pence as vice president — turned out for Trump in November. The Supreme Court issue was frequently mentioned in mailers targeting Republicans, and a majority of voters who told exit pollsters the Supreme Court was the most important issue affecting their decision voted for Trump.
Will the Gorsuch nomination work out for Trump?
Was Trump right to be essentially apathetic about who sits on the Court? Theoretically, a president might prefer to install a crony who can be trusted to rule in his favor, and in the past some have. But that’s fallen out of fashion in recent years. The new norm is that the nominee should have strong credentials and should also have effectively signaled to their respective political cliques’ elites that they’re “on the team.” This is the model followed in all six successful recent Supreme Court nominations, and when George W. Bush diverged from it by nominating longtime aide Harriet Miers, it didn’t work out well for him.
Still, there is one issue that could prove to be a problem for Trump. Some movement conservatives have long hoped to restrict the powers of government, and have seen the judicial system as one way to do that. Trump, though, showed little interest in small-government ideology during the campaign, and wants to do big and bold things as president. Already this weekend, his efforts to govern through sweeping and controversial executive action have been held up by lawsuits.
So I wonder whether Trump has thoroughly considered his nominee’s views on executive power, and whether a more traditional conservative like Gorsuch, if confirmed, could issue some rulings down the line that would prove inconvenient for Trump.
For now, though, the Gorsuch pick is winning at least some bipartisan praise, and already looks difficult for Democrats to oppose. So politically, the deal seems to be working out well for him so far. “Millions of voters said this was the single most important issue to them when they voted for me for president,” Trump said during the announcement. “I am a man of my word. I will do as I say.” For this Supreme Court pick, at least, he delivered on that promise.
