How it is that we have a 6-3 conservative Supreme Court despite the fact that Republicans have only twice won a presidential majority since 1992 is one of the most disturbing elements in modern political memory. Somehow, Donald Trump was in the position to appoint three justices to the SCOTUS – including a replacement for the mighty Ruth Bader-Ginsberg, in just four years, after losing the popular vote, whereas President Obama named only two justices over eight years, winning substantial majorities, and wasn’t able to appoint a successor to Justice Scalia, who also died in office. As if that were not enough, Trump outsourced the hunt for new judges to the arch-conservative Federalist Society, which simply handed Trump a list of judges it had already deemed qualified. In so doing, Trump won the hearts of conservatives everywhere as part of his lasting legacy. But Trump’s recent actions now put that same legacy in doubt and will puncture a hole in his support among the conservative elite, including conservative judges.
The Wall Street Journal editorial board believes that Trump’s latest “shot across the bow” of conservative judges will turn out to be a reason for judges to stay on the bench through Trump’s term, preventing him from nominating a slate of young new true believers who will be in place for the next 40 years. To review, Trump launched this tirade against Leonard Leo, the president of The Federalist Society, after losing a major tariff case:
Trump refers to Leonard Leo as a “sleazebag”
Right. There is no other reason that a judge could have ruled against Trump other than “hatred.” Trump is once again placing his reference frame – making decisions based on whether he likes or dislikes someone, or some state, or some company, and not on principles, legal or otherwise. It is this sort of “loyalty” that The Wall Street Journal says will keep conservative judges working lest Trump replace them with a complete political hack. According to the Journal:
“Talk about friendly fire. Mr. Trump is attacking the group, and especially the man in Leonard Leo, that were vital to his first-term success on judicial nominations,” they wote before adding, “The irony here is that Mr. Trump’s appointments to the federal bench are one of the strongest parts of his legacy.
Better that than a long-lasting, full-blown, constitutional crisis of the type that we seem to teeter on daily. (He has not yet declared martial law nor suspended habeas corpus – two acts that would send the nation spiraling out of control.) The Journal goes on to add in withering fashion:
“The President should understand that his attacks on judicial conservatives will hurt his own agenda and legacy. His social-media post is the talk of the judicial ranks, and he is making no friends. Mr. Trump is likely to see fewer judges retire, lest they be replaced by partisan hacks. That includes Justices Samuel Alito (age 75) and Clarence Thomas (76).
Both Alito and Thomas are expected to retire. Indeed, if they do not retire, they will want someone checking their soup after November 2026. (Joking, I hope). It is likely safe to say that Thomas will bend to Trump’s will. Alito is more of a wild card and may wait. We know that if Alito waits until after the election, a possible Democratic majority could hold the seat open for two years – it would be justice in so many ways. Finally, the Journal adds:
An odd irony of Mr. Trump’s second term is that he has forgotten much of what produced the first-term successes that persuaded GOP primary voters he deserved re-election. His assault on his own judicial legacy is Exhibit A.”
One thing that Trump has not forgotten is the trouble that people loyal to the Constitution and country caused him during his first administration, and the only lesson he seems to have taken to heart is to appoint people loyal to him personally, over and above the Constitution – indeed, Trump will tell us he demands it. The oath to the Constitution is moot. So, of course, Trump doesn’t care what made him “great” in conservatives’ eyes. It is loyalty, stupid – that’s all that matters now to the king, who will soon view a military parade on or near his birthday.
The Federalist Society deserves this. They wanted a president whom they could control. And they got one, but purely out of disinterest. Trump wasn’t willing to sort through all those files on possible judges. Trump only knew it was then in his best interest to appoint Federalist Society-approved judges. Now, the ruling against Trump tariffs is against his political interests (Along with the TACO meme), and he blows up at the people he sees as responsible – the Federalist Society.
Again, this isn’t about conservatism – or, at least not to Trump. The Federalist Society might have supposed that appointing conservative judges was a higher principle than any one case, including one involving tariffs. They likely still do. But Trump only knows loyalty, and that principle is literally day to day. Yet he cannot “undo” his sleazebag comment, and conservative judges may see Trump taking non-conservative action and want to stop him from the bench (As is their job if they believe the act is unconstitutional). They don’t want to be replaced by a 38 year old who worked for the Trump campaign and knows nothing about legal principles, much less scholarship.
One more time, Trump, his transactional nature, and his temper, all combined to do massive damage to himself going forward. That’s okay with Trump. Tomorrow is a new day, and he’ll see who is on his side a day from now. That’s all that matters to him. Eventually, he will come to care that others have different priorities. We will wait, and so might the judges.
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I think we might actually see Thomas and Alito showing a bit more (of what passes for a) spine when it comes to their rulings on Drumpf-related matters given Drumpf’s attacks on the man who basically owns the both of them.
Leonard Leo, after all, is the individual whose name came up quite frequently as the supplier of those “gifts” that Thomas and Alito received but “forgot” to report.
Dear Wall Street Journal: You endorsed a man that YOU KNEW is a lying, sociopathic criminal because you believed he would lower taxes for the wealthy and reduce regulations on business. And now you want to talk about his “legacy”? Have you no shame?