Support The Bulwark and subscribe today.
  Join Now

But No One!

By replacing Ginsburg, Trump may be making himself obsolete.
September 20, 2020
But No One!
President Donald Trump departs after speaking about his list of potential Supreme Court nominees in the Diplomatic Reception Room of the White House on September 9, 2020 in Washington, DC. President Trump also fielded questions about the coronavirus and Bob Woodward's new book about him. (Photo by Doug Mills-Pool/Getty Images)

As a fractured Republican Party ambled towards the general election in 2016, one individual took on the prodigious task of holding conservatives together. This person didn’t have a name or a face. We didn’t know if they were male or female, short or tall, black, Hispanic, or white.

In fact, that person didn’t even yet exist. The individual in question was the person a prospective President Donald Trump would appoint to succeed revered conservative Justice Antonin Scalia, who died in February of that year. Republicans famously held the seat open, with Senate Majority Leader Mitch McConnell arguing that with the presidential election underway, the people had a say in who this mysterious individual would be.

Trump only received 44.9% of the total votes within his own party in 2016, the lowest number for an eventual winner since Michael Dukakis won the Democratic primary in 1988. But it was the prospect of the new president picking this open seat that drew a lot of skeptical conservatives to unify and back Trump.

Of course, the mystery person who galvanized the GOP ended up being now-Justice Neil Gorsuch. But Trump wasn’t done: he later picked Circuit Court of Appeals Judge Brett Kavanaugh to fill the seat vacated by moderate conservative Justice Anthony Kennedy. And now, Trump has the option to fill the seat opened by the death of liberal Justice Ruth Bader Ginsburg on Friday.

Trump, who is facing an uphill battle to earn re-election in November, has indicated he will make an appointment, and McConnell has pledged there will be a vote on a new justice before a new Senate is seated on January 3.

But if Trump does make his pick and McConnell does push the choice through the Senate, his coalition of traditional conservatives and populist nationalists will likely dissolve. Gone will be the fear that a Democratic president will appoint a justice who will swing the Court so far to the left that gay marriage will be mandatory and abortions will be performed at Costco.

In effect, by making a pick, Trump may be rendering himself obsolete in November.

According to an August Pew poll, 64 percent of registered voters said they consider Supreme Court appointments to be a top issue, trailing only the economy (79 percent) and health care (68 percent.) Conservatives who find Trump wholly unfit for the job but currently burn a candle in front of a portrait of Amy Coney Barrett on a nightly basis lose the need for four more years of Trump if Republican-appointed justices hold a bulletproof 6-3 majority on the bench.

“But Coney Barrett” only works if the seat is open in 2021.

Using the composition of the Supreme Court as a campaign issue has typically been a winner for Republicans. In 1968, Richard Nixon railed against the liberal Warren Court, arguing it too often sided with society’s “criminal forces” against its “peace forces.” Nixon promised his appointments would view their duty as “interpreting law and not making law” and not serve as “superlegislators with a free hand to impose their social and political viewpoints upon the American people.”

Many Trump critics will likely see winning the Supreme Court and losing the presidency as a fair tradeoff – a rock-solid conservative Supreme Court was the only reason to vote for him in 2016, so once that’s a done deal, it’s best for the GOP to cut him loose. But it will also impugn the integrity of the Court, poisoning future decisions and turning nomination fights into unwinnable wars of attrition.

There will always be a wing of Trump supporters who will support him no matter how much bleach he instructs them to drink or how many war heroes he assails. But if the Supreme Court is Biden-proof, there may be just enough conservative voters willing to choose normalcy over daily insanity.

Christian Schneider

Christian Schneider is a member of the USA Today board of contributors and author of 1916: The Blog. Twitter: @Schneider_CM.