Trump and the Supreme Court

Cal Thomas,

In releasing his list of potential Supreme Court nominees, Donald Trump, the presumptive Republican presidential nominee, has begun to solidify his support among conservatives as perhaps no other announcement could do.

The record of any of the 11 judges currently serving on federal or state benches may calm the fears of those who are not committed “NeverTrump-ers.”

A clear sign of how well these men and women would perform on the court is the reaction by Hillary Clinton, who calls them “extreme ideologues.” Today, if one wishes to return to the boundaries set for government by the Constitution, the left considers that extreme. Violating constitutional boundaries is considered “progressive.”

CNN.com writes, “John Malcolm, a senior legal fellow at the Heritage Foundation who compiled and published the foundation’s list of eight potential Supreme Court nominees in March, called Trump’s selections ‘excellent’ … and (the list) should be reassuring to those conservatives who have had doubts about Trump’s judicial appointments.”

Malcolm responded to my request for an analysis of their philosophy and rulings:

— Steven Colloton, who serves on the U.S. Court of Appeals for the Eighth Circuit, was appointed by President George W. Bush in 2003. He earned a law degree from Yale and clerked for the late Chief Justice William Rehnquist, a conservative icon.

— Allison Eid is an associate justice on the Colorado Supreme Court. Prior to her judicial service, Eid was Colorado’s solicitor general and a law professor at the University of Colorado. She clerked for Justice Clarence Thomas, another conservative favorite.

— Raymond Gruender was named to the U.S. Court of Appeals for the Eighth Circuit by President Bush in 2004. Among his decisions that will delight conservatives was a written opinion that the Pregnancy Discrimination Act of 1978 did not give female employees the right to insurance coverage for contraceptives used solely to prevent pregnancy. Judge Gruender also dissented from a panel ruling that upheld an injunction striking down a South Dakota law requiring abortion providers to inform patients that an “abortion will terminate the life of a whole, separate, unique, living human being.”

— Joan Larsen is an associate justice of the Michigan Supreme Court and before that a professor at the University of Michigan School of Law. She clerked for the late Justice Antonin Scalia, which would make her nomination especially poignant. Of interest to conservatives is her statement after being named to the Michigan court. Promising to be a “strict constructionist,” she explained, “I believe in enforcing the laws as written by the legislature and signed by the governor. I don’t think judges are a policy-making branch of government.”

— Thomas Hardiman of Pennsylvania has been a judge on the U.S. Court of Appeals for the Third Circuit since 2007. His ruling that a jail policy of strip-searching all arrestees does not violate the Fourth Amendment was upheld by the Supreme Court in 2012. The following year, he dissented from his court’s decision on a New Jersey law requiring applicants for licenses to carry handguns in public to show “justifiable need,” citing the Second Amendment to the U.S. Constitution.

The others on Trump’s list also have stellar conservative credentials. The question is: will he follow through, or change his mind, as he has done on so many other issues?

A Washington Post editorial said that by publishing their names now, Trump “has practically guaranteed that none of the judges he offered will be seen as fair over the next several months, their every ruling scrutinized for evidence that they are applying for the job — even if they try to conduct their duties evenhandedly.” The Post also chastised Clinton and Sanders for applying litmus tests to judges they would nominate, but it’s no secret that liberal presidents name liberal judges and conservatives presidents mostly, but not always, nominate conservatives.

The Heritage Foundation would be a good source for Trump, as it was for Ronald Reagan, who used its 1980 “Mandate for Leadership” as a guide for his first term on many domestic and foreign policy issues. Trump would improve his credibility and knowledge of important issues if he did the same.