Third time's a charm.
Over the last two weeks I have tried to use this space to persuade #NeverTrumpers that their opposition to Donald Trump, no matter how deeply principled on their part, should yield to the manifest damage that would be done to the rule of law in the United States by even one, much less two or more, appointments to the U.S. Supreme Court by Secretary of State Hillary Clinton, should she become President Hillary Clinton.
No need to repeat the arguments. Read them here and here. But one last objection to the "vote Trump to save the Supreme Court" argument needs revisiting because it remains standing in some places, and my colleague in the talk radio world Ben Shapiro gave voice to it again last week in a short but sharp exchange we had on air.
(During which exchange, I should add, I wrongly accused Ben of being of the alt-Right. Ben was rightly chagrined and I was wrong to have made the charge. Ben was chagrined because he defines the alt-Right narrowly as the execrable anti-Semitic, white supremacist fringe that is amplified in social media these days. I define the alt-Right much more broadly as the reflexively anti-GOP right that is largely based in the anti-any-immigration-reform-
My mistake aside, Ben is a proud never-ever-never #NeverTrumper and rejects my "save the Supreme Court" argument on behalf of Trump because, to summarize — fairly, I hope, to Ben — you can't trust Trump to nominate conservatives to the court despite Trump's oft-repeated pledge to do so and despite the ability of Leader McConnell to block non-conservative nominees as he and his GOP colleagues have blocked Judge Merrick Garland all these many months, never flinching and never wavering in their #NoHearingsNoVotes resolve.
Ben simply refuses to believe Trump or to accept that McConnell and his colleagues will block a lousy Trump nominee. (Ben also thinks that my belief that the Senate will confirm Clinton nominees — eventually — should undercut my confidence in the Senate GOP's willingness to stop a promise-breaking nomination from Trump. This is simply silly. Secretary Clinton's winning on the basis of promising liberal Supreme Court justices puts the Senate in an obviously very different position vis a vis her nominees than it would be in if Trump wins having run as he has on the promise of nominating originalists.)
I think Trump will stick to his list and that the GOP Senate will enforce the promise. Thus I believe #NeverTrumpers are being incredibly indifferent to the values of originalism at the heart of the conservative movement.
These are, to say the least, big issues and big differences.
So I took the opportunity to pose some questions to Donald Trump on this subject when the GOP nominee appeared on my program last Thursday. His answers to these questions were interesting, but were immediately overshadowed by the "founders of ISIS" controversy. So here's the transcript of our exchange on Supreme Court nominations:
HH: I've been writing about the Supreme Court a lot, and [#NeverTrumpers] keep telling me we can't trust Trump on his list of 11, and I wrote hey, you don't have to trust Trump. If he departs from the list — I trust you, by the way — but if he departs, Mitch McConnell can block your nominee. First, can we trust you to live by that list? And second, if you didn't, would McConnell be justified in blocking your nominee?
DT: Yeah, No. 1, I'm going to live by that list or very close to it. It is possible there'll be somebody outside of that list that has very similar principles, and I think you don't want to totally preclude that. But the answer is yes, I'm living by the list, and yes, he can do whatever he wants, because it'll be either that list or somebody that is very close to it. In fact, I'm thinking about actually naming four or five more people to the list. You know, we had it vetted from the Federalist Society, and we had, and actually got the names from the Federalist, and that's considered pretty much the gold standard. We have Jim DeMint and his group ...
HH: At Heritage, yeah.
DT: ... knows those names and respects those names. I have a lot of respect for Jim DeMint. And we have, you know, we have a great list. It's a great list of people. Yeah, I mean, if we veered from that, I would say block it, and I would be very happy with that. And I wouldn't even fight it, because I won't have to.
There you have it. If Donald Trump departs from his list of future Supreme Court nominees, Donald Trump has authorized Mitch McConnell and Senate Republicans to block that nominee and enforce the list. And I have no doubt that they would, because not only have they shown the collective spine to do so in the course of the Garland debate, here they have irrefutable evidence of the potential president's consent to a future blockade if necessary.
Trump is thus now effectively stopped from effectively arguing against the Senate's refusal to confirm an unacceptable nominee.
Now Ben and others can conjure up all sorts of hypotheticals wherein Trump backtracks or McConnell and the Senate GOP caves. But there is no way any additional proof can be brought forward on the subject. Clinging to objections that the Supreme Court argument has no weight now is in fact proof that "We can't trust him" was cover all along to avoid the discomfort of counting the cost of helping to defeat Trump and elect Clinton.
There can be no more assurance to be given than has been given, and a lot has been given. The court is definitely in the balance and the #NeverTrumpers are saying they don't care about that, or more accurately, that they fear a President Trump more than they do a wildly liberal Supreme Court and all that such a court means for the originalist project.
It is possible to reach that conclusion. Some have done so openly. But it is not possible to say honestly that it doesn't matter to the court if Trump wins or loses. It does. Greatly. Permanently. Or at least for decades, but practically speaking, that means forever.
The distaste for Trump is so deep among some of the #NeverTrumpers that it is now quite obviously impacting their ability to assess the stakes transparently. This does not make them dishonest. Far from it. Only passionate to the point of being oblivious to the cost and unwilling to do the math on the consequences to the country if the Supreme Court veers left.
About their opposition I can do nothing I haven't already done. But I can ask them again to at least level with those they influence about the actual cost of losing the court to a Clinton nominee(s). Clarity, please, and brutal candor. I know their arguments against Trump, and I try to represent them fairly. I don't credit them when it comes to the risk of nuclear war or even major military actions taken out of pique, though I do believe they are right that Mr. Trump means major damage to NATO and to the cause of expanding free trade. These are huge costs, but much less staggering to the basic structure of the republic than losing the court. They may disagree, but they haven't yet made that argument.
They haven't yet made any argument at all about the cost of losing the court. And in their silence or deflection is a huge admission of a refusal to look the future square in the face and accept it as it will certainly be.
Hugh Hewitt is a nationally syndicated talk radio host, law professor at Chapman University's Fowler School of Law, and author, most recently of The Queen: The Epic Ambition of Hillary and the Coming of a Second "Clinton Era." He posts daily at HughHewitt.com and is on Twitter @hughhewitt.