The Supreme Court in the 2016 Election

One of the very few good things about this election cycle is the emphasis that candidates for both President and the Senate have placed on the Supreme Court, and on the importance of nominating and confirming good justices. As important as the Court is, and has always been, the past few elections have all focused on issues like the economy or national security, with the judiciary getting little more than a passing mention in debates. While I wish it hadn’t taken the death of one of the greatest Supreme Court justices of the past century to drive the point home, it is important for voters to remember that the federal government has three branches, and the judicial branch is just as important, if less noticed, than the other two.

And, because this is 2016, that’s where the good news ends. Hillary Clinton’s judicial nominees would be far to the Left, and embrace a “living Constitution” judicial doctrine in which the words of the Constitution itself cease to have any meaning. The nomination of even one such justice to fill Scalia’s seat would be enough to form a liberal majority on the Court for the foreseeable future, and as both candidates love to point out, there could well be several additional vacancies over the next four years.

This is the part where Trump comes in, waving his list of potential Court nominees and saying, “All you conservatives, you have to vote for me because of the judges.” And the list he released in May was strong, with many reliable conservatives.

The problem is that the list was released by Donald Trump—absolutely nothing he says or does is binding. The day after releasing The List, he admitted that he also reserved the right to nominate someone else. The List was not comprehensive—as he had been arguing earlier that same week—but rather merely illustrated the type of justice he would probably appoint. In effect, not very different from his prior grand promises to appoint “the best judges” and “the best people.”

 And then you remember how Trump also said, last year, that his liberal, pro-abortion sister would make a “phenomenal” Supreme Court justice. And how many problems Trump has had with the Constitution in the recent past, from eminent domain and “opening up” libel laws to executive power and Article XII—all coupled with the fact that he also tends to hire people who are personally loyal to him alone. The prospect of a Trump appointment to the Supreme Court begins to look less and less appealing.

Gary Johnson, meanwhile, has promised to appoint judges who pay attention to “original intent” (his words), and in general has displayed a far better grasp of the Constitution, and the limitations of the federal government, than either Clinton or Trump. True, William Weld has voiced support for both Stephen Breyer and Merrick Garland as recently as last month. But compared to what both Clinton and Trump have said in the past with regard to the Supreme Court this is a minor comparison—even before we get to the part where, as Vice President, Weld would have no formal say in the appointment of judges.

So, to sum up—one candidate for President openly seeks to appoint extreme left-wing justices who support the idea of a “living Constitution”. Another candidate seems to believe that the ideal justice would place personal loyalty above all else, even when Constitutional principles like checks and balances, freedom of the press, and religious liberty stand in the way. And only one candidate regularly espouses Constitutional principles and has consistently promised to appoint strict originalist justices to the Court.