Trump Comes Through for Evangelicals

The most important moment of the 2016 presidential campaign happened on February 13, 2016. There were no primaries or caucuses and no one entered or dropped out of the race. Instead, on that day, the world learned of Justice Antonin Scalia’s death on a ranch in Texas. What was an important election against a historic foe quickly turned into a fight for the future of the Supreme Court. Scalia’s death gave progressives an opportunity to switch the Court ideologically, while conservatives stared at decades in the judicial wilderness.

As Donald J. Trump emerged as the frontrunner, his detractors claimed he was too squishy to be trusted with such a monumental task, His closest competitor, Ted Cruz, seemed ideally suited to make such a choice. Cruz and Trump eventually fought for evangelicals in the election and Trump won out. Why? He emerged as a threat to Hillary Clinton and he published a list of twenty-one potential Supreme Court selections. In that list, evangelicals found a possibility, a hope, even if small, the Court could be salvaged, religious liberty might be maintained, and that life, at its most vulnerable, might still be legally protected.

Though the list was largely impressive, I did not trust Trump to follow through on that promise. He has proven me wrong on this point. Tonight, President Trump nominated Neil Gorsuch to replace Antonin Scalia. Gorsuch currently serves on the Tenth Circuit Court of Appeals and is widely recognized as a legal force for Justice Scalia’s ideals.

Generally misunderstood, Scalia argued for a textualism rooted in the context of when laws or amendments were written and initially applied. Critics argue Scalia’s approach improperly binds the present to the past. Scalia, and Gorsuch, believed this interpretive approach instead binds the judge to the law and forces the judicial branch to busy itself with interpretation instead of legislation.

I am not intimately familiar with Gorsuch and I am sure his nomination will elicit strong opposition from Democrats. Neal Katyal, who was acting solicitor general in the Obama Administration, bucks that trend. He has written an op-ed in The New York Times, expressing strong support for Gorsuch’s nomination. Ed Whelan, a true expert on all things judicial, penned a strong endorsement of Gorsuch here.  For a solid biographical sketch, see this Politico article.

Four years remain in Donald J. Trump’s term of office. His recent executive order on immigration, refugees, and international travel was at least incompetent and potentially cruel, especially to green card holders. His tweets are still poisonous extensions of presidential power. His inner-circle is shaky and intensely inexperienced in parts. He may be circumventing experts at Defense, State, and Homeland Security. Much can still go wrong. But for conservatives across the land, barring some sort of personal surprise, Trump got this Supreme Court nomination unequivocally right.

24 thoughts on “Trump Comes Through for Evangelicals”

  1. Good article, but I think it espouses a rosy view of Scalia.

    The more I read him, the more I am amazed at the creative ways Scalia constructs interpretive frameworks out of thin air. DC v. Heller (2008, second amendment) and Employment Division v. Smith (1990, first amendment) are probably the two best examples. In both the former and the latter, Scalia invented new grammatical categories to reach outcomes he explicitly admits best aligned with his own notions of common sense. He wasn’t anchored by textualism; textualism was, in those cases, a convenient tool enabling him to build something out of nothing.

    Despite what conservative scholars and pundits would have us believe, I am convinced that Scalia was very much an ends-justifies-the-means jurist. He was the Ginsburg of the right, and perhaps that is why the two of them became such formidable frenemies.

    Now, I have had the privilege of working with a a true textualist (who made Trump’s second short list in 2016): Michigan’s former Supreme Court Chief Justice, Robert P. Young. Working under him, I developed a newfound respect for what true, principled textualism can look like. Justice Young authors opinions and dissents strictly guided by textualist canons and doctrines. Even though he – like Scalia – rejects policy-driven arguments like the plague, he also submits his own ideology to textualism in a way that would never have satisfied the President’s search for a conservative firebrand.

    I can appreciate what textualism can stand for when it is principled and grounded. I hope Gorsuch is more tailored after Justice Young’s textualism than Justice Scalia’s ad hoc, selective version.

    1. You mentioned that evangelicals hoped that Trump’s replacement would maintain”religious liberty.

      Ironically, it was Scalia’s opinion in Smith (above) – and not some liberal jurist – that undermined religious liberty to such an extent that the ACLU and the ADF actually worked together to pass the federal Religious Freedom Restoration Act and catalyze the passing of state-based RFRAs around the country.

    2. Jonathan–of course anyone can pick out a few cases where you might argue Scalia’s approach was not as pure as it could have been. I think he got Smith wrong on at least two fronts. I also disagree with his reading of the Second Amendment and favor Epstein’s understanding more because it is rooted in the structure of the document and the federalism of the founding era. Still, when you look at Scalia’s preferred policy outcomes, say regarding gay marriage or abortion, there are ways to interpret the text to arrive at conclusions that ban gay marriage or abortion. Those would have required a twisted, ideologically driven method, which Scalia shunned. He repeatedly said those were “political” decisions properly made by the people’s representatives at the state level. Also, when you look at his jurisprudence on criminal rights, he repeatedly reached more “liberal” outcomes against law enforcement interests, frequently siding with Ginsburg, Stevens, and Breyer. The same could be said for free speech.

      Perhaps most critically, Scalia, along with others (like Bork), legitimized the method as a mainstream, respectable alternative within the legal community. Compared to forty years ago, Federalist Societies are littered across the country. Scalia’s dissents are continually read. His withering arguments against legislative intent have changed the Court’s approach. So, regardless of the extent to which you think he applied his methods fairly (I think he largely did), his methods will live far beyond him.

      1. No question, his methods will live far beyond him! :) I wouldn’t even attempt to argue that he did anything besides cement himself as one of the most influential jurists in the history of the Court.

        You’re right to point out his criminal law jurisprudence (though there’s an argument to be made that the sheer consistency of his work suggests an ideological rather than textual approach). I’m probably not being as fair as I should.

    3. Well put. I agree about Scalia’s selective originalism. I mentioned that here on this blog some time back, if I recall.

    4. The Richard Rich’s of this nation have been redeemed. https://goo.gl/5Ci1Hu

      As Dr Smith suggests, four years remain in Donald J. Trump’s term of office.

      Just ten days in, and less than 1 percent of his term completed, Trump’s nomination of Neil McGill Gorsuch may prove to be the single most important act of his entire presidency.

      Yet today, the posts choose to spin the news differently.

      We lament hand picked decisions and Justice Scalia’s invention of “new grammatical categories” in hopes that Gorsuch is less “ad hoc”.

      We voice concern about his denominational affiliation.

      We wish to have played roulette with a Garland nomination.

      The author chooses to cast this historic moment in the shadow of actions and circumstances of lesser consequence.

      Why?

      For a moment, try to imagine this day if it were the other candidate making the judicial introduction.

      Who would be the nominee? What would be their foundational underpinnings?

      What would this post look like? What would we be debating?

      If the other candidate’s nominee were in front of the podium, what would be the potential impact on our country’s future for decades to come?

      Props to Nathan D. You have my respect. You have stood firm even when it was unpopular. You, good sir, are right about a number of things. At a minimum, that being Trump’s acting on what he has said he will do.

      In the short time of his tenure, of what other presidential politician can we make that statement? Of what other president can we make that statement with the benefit of full term hindsight?

      Dr. Smith. I respect your admission. But an apology to all the Richard Rich’s called out in your post of May 19, 2016 is glaringly omitted.

      You might not like WHAT Trump does. You may even detest HOW he does it. But you will twist in the wind arguing against his fortitude for follow through despite the obvious prospect of overwhelming resistance. There are many principled posters on this site whom in his shoes, would wilt at the prospect.

      How quickly we lose sight of what could have been, as we complain and marginalize what is.

      1. Richie – Your comment is fascinating. :)

        You seem to be claiming, though no quite explicitly, that Trump’s selection of a qualified, conservative nominee justifies his entire presidency (and all the support that made it possible). Did I understand you correctly? :)

        If so, can you admit that reasonable people might disagree; they might consider other issues – or a collection of other issues – just as significant, if not more so. While the President may have satisfied conservatives on this front, he has not (and likely will not) on many others. Or do you disagree?

        Also, to be clear: Dr. Smith’s criticism never centered solely on Trump’s potential (or lack thereof) to pick a credible jurist. Dr. Smith was perhaps most forceful of all when speaking of – and eventually condemning – Trump’s character failures.

      2. To the extent that my comment is fascinating, yours appears condescending.

        “Gorsuch may prove to be the single most important act of his entire presidency.”

        Arguable, sure. Hardly so to this point.

        The statement doesn’t deny one might disagree nor consider other issues. Neither does it justify his entire presidency.

        In fact, I share numerous reservations.

        Yet, THIS post is about the Supreme Court nominee. Dr. Smith’s post of May 19th 2016 may offer context.

        Are you one of the concerned “conservatives on this front”? Is perspective and justification what you truly seek?

        If so, consideration of what might have been, may be warranted.

  2. Actually, after Trump’s first few days, I am not at all surprised he kept his word on SCOTUS. Thus far, Trump seems to, in fact, be committed to keeping his campaign promises, good and bad. This one was a good one.

    I seriously question, though, whether he can be confirmed. My gut tells me that rather than be grilled on abortion and the traditional issues a SCOTUS nominee would be, this nomination will center around the legality of Trump’s immigration orders. If Gorsuch appears to back their legality, he could very well fail. Only a couple GOP defections would sink the nuclear option, and him, and the nuclear option, as I see it, in the only hope he has of making it to the bench.

    As for whether the GOP should try invoking the nuclear option, I am unsure. I have mixed feelings. I supported the decision by the GOP to hold Scalia’s seat open until the new President was in office. It was a risky gamble that paid off. According to the polls 56% of those who said SCOTUS was primary concern voted for Trump. But the GOP will now have to deal with pay back. The Democrats are completely within their rights to hold out as long as they can. The risk for them comes in 2018 when a number of their Senators from Trump-won States are up for reelection. But even then, I doubt enough of them are in serious enough trouble to provide the GOP with the coveted 60.

    Interesting times for sure.

    1. Also, as brutal and ugly as this fight will be, remember, this is merely to restore the court to what it was before Scalia’s death. If Ginsburg or Breyer, or even the moderate Kennedy, die or step down within the next few years, the battle for their seats will make this one look like a friendly bickering.

    2. Nathan–I appreciate your concern. It has the potential to get ugly. Let me offer an alternative for the sake of argument. First, Gorsuch can get out of Trump’s executive order problem by simply claiming this is a live issue (even if his order has been litigated) and the president’s approach to immigration is likely to be a critical legislative issue in the short term, therefore he will simply refuse to answer questions about the matter. Second, given Gorsuch’s near bullet-proof credentials and background (unless there is some unknown personal issue), the Democrats might choose, prudently, to save their strenuous arguments for the next nominee that will actually shift the balance of power on the court (assuming it is a replacement for Ginsburg or Breyer instead of Thomas or Kennedy). Also, it might buy them some political good will.

      As to Garland’s nomination, I wish the Republicans had the nerve to vote him down. I know McConnell did not want to expose vulnerable senators, I don’t think it would have mattered in the long run. Also, it would have been healthy for the country and it would have shown some amount of respect norms. I think it was a mistake and it merely heightened the polarization we are looking at right now.

      1. “As to Garland’s nomination, I wish the Republicans had the nerve to vote him down. I know McConnell did not want to expose vulnerable senators.”

        For nerve, there must be a nervous system, a spine, and a brain. I am not sure most Republican senators have the last two.

        I agree that a fair vote would have been healthy for the country, because now we are left with a bad precedent. Democrats once they get back into power will likely return the Garland favor. And that cannot be good for the country in the long run.

  3. The article by Neal Katyal that was linked to this article was encouraging and refreshing, especially coming from what would be viewed as the “opposing side.” It’s good to be reminded that not all politicians are viewing situations as Republicans vs. Democrats. Katyal has the law at the forefront of his mind.

  4. Mark Caleb Smith thank you so much for being honest on the topic of Trump. Given your previous articles you are clearly skeptical of him, but I very much appreciate that you are commending him for the things he is doing right as well as criticizing him for what he is doing wrong. I hear people on the comments calling him a liar, but seriously, up to this point when has he not done what he said he would do? In my opinion, Trump has been more honest then the vast majority of presidents in American history based on his current actions. I myself am a supporter of Trump and I have not seen anything that would indicate that he is sinister as some would suggest. Not to say he has everything right, but when did a president have EVERYTHING right? If Christians expect the government to be perfect, then maybe they should reconsider what their focus is in life. Are we looking towards the perfect future after God’s judgement is complete, or are we looking for a perfect government on earth? Not to say that criticism of Trump is wrong, but only looking at his faults and not being thankful for the good that will come because of him is wrong. “Give thanks in all circumstances; for this is God’s will for you in Christ Jesus.” 1 Thessalonians 5:18

  5. I am cautiously optimistic about Gorsuch, however I remember other Republican picks that didn’t work out so well. The thing that worries me about Gorsuch is his religious affiliation, Episcopal, and their views on some of the major evangelical concerns.

    1. I would be more concerned if he were forthrightly evangelical, considering the problem that many from that community have in respecting other religious points of view. Tolerance of different viewpoints seems essential in appreciating the meaning of the First Amendment. In my experience, that quality seems quite lacking.

    2. I’m a bit confused: Do you think Gorsuch will target other protestant groups? I’m not sure what concerns you’re referring to.

  6. This, combined with his promise to torpedo the Johnson Amendment, reminds me of Mussolini’s decision to reach out to the Vatican. Obviously, the situations are not perfectly analogous, but it raises red flags, considering Hair Trump’s other flirtations with fascism.

    Meanwhile, there is a white supremacist (sorry, white nationalist) advising the president, and far too many believers are too busy and self-absorbed to care. What will they do when they come after the legal immigrants in order to keep American’s declining white majority happy?

    No, I am not overstating this. No, I am not being shrill. Yes, we should pray for this nation.

  7. Very good article on an important topic. To all who voted for Trump over Clinton exclusively for the SCOTUS pick, it seems they got what they wanted. At the very least this is a sign that Trump is aware of and will respect some of his promises made during his campaign.

  8. Very good article on an important topic. To all who voted for Trump over Clinton exclusively for the SCOTUS pick, it seems they got what they wanted. At the very least this is a sign that Trump is aware of and will respect some of his promises made during his campaign.

  9. This nomination is critical because right now it seems as though Trump is focusing on too many things and not choosing the right battles to fight. This nomination is, like others said, at least a sign that he will keep some of his promises that he made during the campaign.

  10. This nomination was obviously very important to evangelicals especially with the other decisions he has been making. I do believe Trump was the better choice over Hilary because I do not think she would have made the same selection. Trump has been the president for two weeks now and he is already making lots of big decisions, I think the best option for him right now would be to slow down and realize he has four years.

  11. I appreciate the fact that this article highlights both the aspects of where Trump goes wrong and where he is right. I really hate the fact that our president of the Unite States still tweets poisonous extensions of presidential power. I also think Trump is attacking too many things at once and not able to focus on a few points and succeed in those. As stated, Trump has four more years in office and it will be interesting to see what happens.

  12. I didn’t think that Trump would follow through with what he said either. However, I am glad that he is making decisions and that he nominated Neil Gorsuch. I hope he continues to follow through with what he says he will do.

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