The Special Hell of Trump’s Supreme Court Appointment
With a
nonexistent mandate, he does extraordinary damage.
By Frank
Bruni
Opinion
Columnist
·
Sept. 22, 2020
It was almost
inevitable that President Trump would get one Supreme Court appointment during
this four-year term. It was always possible that he’d get two.
But three? Seldom has a
president’s impact been so inversely proportional to his warrant. Trump, with
his nonexistent mandate, reaches extra far and wreaks extra damage. That’s what
makes his reign so perverse. That’s the special hell of it.
Almost instantly
after the news of Ruth Bader Ginsburg’s death, I checked how many Supreme Court
justices Trump’s immediate predecessors had appointed, because I knew how fast
he and Mitch McConnell would move to fill her seat. When it comes to this sort
of unabashed power grab, they’re conjoined twins, connected by their contempt
for fools who get hung up on hypocrisy and prattle about fairness.
Here, in reverse
chronological order, are the five men who occupied the Oval Office over the
roughly three decades before Trump took his seat at the Resolute Desk, and
their impact on the court:
President
Barack Obama appointed two Supreme Court justices: Sonia Sotomayor and then
Elena Kagan. That was over two terms, both of which were secured with
wide-margin victories in the popular vote as well as the Electoral College.
Obama would have had
a third appointment, but Mitch McConnell, of course, blocked that nominee,
Merrick Garland, decreeing that a court vacancy nearly nine months before the
election should not be filled until afterward, so that the American people
could have a fresh chance to weigh in.
Ginsburg died a month
and a half before Election Day, and Trump, unlike Obama, took office with the
support of a minority of Americans: He got
nearly three million fewer votes than Hillary Clinton. No matter! McConnell has
had some sort of reformation or revelation and decided that this
present is in no way analogous to that past. Just ask Lindsey
Graham, who had
the same epiphany.
President George W.
Bush also got just two Supreme Court justices, John Roberts and Samuel Alito,
but again, over two terms. President Bill Clinton? Same. (He appointed Ginsburg
and Stephen Breyer.)
President
George H.W. Bush got two (David Souter and Clarence Thomas) in one term.
President Ronald Reagan got three (Sandra Day O’Connor, Antonin Scalia and
Anthony Kennedy) in two terms.
So if Trump succeeds
in replacing Ginsburg before the election, he’ll match Reagan’s tally in half
the time, with a mere fraction of the popular support and respect that the
Gipper had. This is what I mean by perverse.
Yes, I know, some
people — and some presidents — just get lucky. But no one gets luckier than Trump,
and no one deserves it less.
And this particular
bit of luck, like his presidency, illuminates a serious and possibly
unsustainable flaw in the American political system. We’re increasingly a
country where the minority is not merely protected from the tyranny of the
majority, as the nation’s founders intended. We’re a country where the minority
rules, and under Trump, it rules tyrannically.
McConnell is in a
position to make Trump’s third court appointment happen because Republicans
have a Senate majority, but they have that majority not because they command
the support of a larger number of Americans than their Democratic counterparts
do. They command the support of fewer.
In 2018,
Democrats won
22 of the 35 Senate elections, with candidates who got roughly 17
million more votes than the Republican candidates got. (And I’m not even
counting, among those 22, two independents who caucus with Democrats, Angus
King of Maine and Bernie Sanders of Vermont.)
But the structure of
the Senate — in which less-populous states get the same say and sway as much
more populous ones — favors Republicans. As Philip Bump of The Washington
Post observed this week, “The Senate has since 2014 been
controlled by Republicans who cumulatively represent less than half of the
country — the longest such stretch in a century.”
Trump
is in a position to make that third court appointment because of the Electoral
College. As I noted, he lost the popular vote. That does not make him an
illegitimate president. But it does advance the argument that we’ve drifted
too far from one person, one vote, and the Electoral College should be
scrapped.
As things stand now,
some handicappers theorize that Joe Biden might have to win the popular vote by
more than five
million ballots to
be even remotely confident of an Electoral College
victory. That, too, is
perverse.
And here we are, on
the cusp of a court that won’t represent what most Americans believe. Sure, the
court isn’t supposed to be beholden to public opinion, but Americans’ faith in
their institutions and feeling that their voices are heard might be strained
even further by what seem to be lurches backward by a court forged in the
hottest flares of partisan passion.
While we’ve been
reminded several times recently of the folly of guessing how justices will
vote, a court with three Trump appointees could well restrict abortion even
though most Americans support its legality in all or most cases. Such a court could
also revisit gay rights, though an even bigger majority of Americans support marriage
equality and an overwhelming majority believe that gay Americans should
be protected from employment discrimination. It could look anew at various
aspects of voting rights and affirmative action.
Were this to happen,
it wouldn’t be because a president with deep-seated convictions was expressing
them through the court. Rather, the most brazen of opportunists is continuing
the politicization of the court and bending it to his re-election. His
deliberations seem to take into account not only which justice or justices
might energize evangelical voters the most, but also whether potential nominees
are from battleground
states. (Judges
from Florida, Michigan and North Carolina have been floated.)
On this front as on
all others, Trump is propelled not by a genuinely felt vision for the country
but by a genuinely insatiable ego. He’s a bully who likes to dominate — in any
way available, to the fullest extent possible — and he’s running rampant, just
for the adrenaline rush of it.
As Ashley Parker of
The Washington Post reported this week, Trump gloated to Bob Woodward about
how many judges he and McConnell had put on the federal bench and how much of
that bench bore Trump’s imprint. “The only one that has a better percentage is
George Washington, because he appointed 100 percent,” Trump told Woodward. “But
my percentage is, you know, like, ridiculous.”
“Maybe they’ll put a
statue of you outside the Supreme Court,” Woodward responded, joking.
“Oh, what a good
idea,” Trump said. “I think I’ll have it erected tomorrow.”
