The republicans in the senate have a clear motive for wanting a new supreme court judge appointed before the election, but with Donald Trump the motivation is not quite as clear. This page contemplates the possible motives of Donald Trump for his rush to appoint a new judge to the high court prior to the election.
Potential Motives:
- Conceding defeat
- To set the balance of the supreme court for the longer term
- Preparation for an election that will ultimately be decided by the supreme court
- Stacking the supreme court for future Trump/presidency cases
Conceding defeat?
Polls indicate the majority of voters, even republicans and even more strongly unaligned voters, favour the appointment of a judge to replace Ruth Bader Ginsberg taking place after the 2020 election.
From all the data, it seems quite clear that their are no votes to be gained by making the judicial appointment prior to the election. It is hard to imaging anyone being motivated to vote for Trump on the basis he has already appointed a new judge. Even those who want the judge Trump will appoint, no longer have to vote for him to ensure the appointment.
In other words, Trump risks disaffecting potentially critical votes by pushing for the appointment prior to the election.
Why?
Clearly, since Trump could just as easily make such a appointment after the election if he is re-elected, the urgency of appointing a judge prior to the election reflects Trump conceding he may lose the election.
In fact, Trump is even risking damaging he chances at winning the election, to get another conservative judge on the supreme court.
For the senators who must support the appointment for the appointment to succeed, only 9 of 53 are facing any chance of failure to be re-elected. Almost the entire republican senate simply see it as putting them in a better position going forward. The 9 who are, like Trump, in an uncertain position, unlike Trump have to worry about doing what the party asks in order to retain the support of the party.
Trump alone is risking his position in a delicate election to ensure an ideology that he himself has wavered in supporting, is supported even more favourable by the high court.
“Mr. Trump doesn’t have a proven conservative record,” Bush said at a town hall in Merrimack, N.H., on Aug. 19, 2015. “He was a Democrat longer in the last decade than he was a Republican.”
Jeb Bush Jeb Bush on how Trump’s political party affiliation has changed numerous times.
It is possible that Trump simply values this as his legacy, and concedes the he is likely to lose the election. But them even Trump himself has given another motivation, as discussed below.
Preparation for an election that will ultimately be decided by the supreme court?
Trump himself has stated he feels the election may be decided by the supreme court. However, when I search for a reference for Trump suggesting the election could be decided by the supreme court, I did not expect to find that he even declared that as a motivation for having more of his own appointments on the supreme court. Surprise: he actually said it!
‘I think this will end up in the supreme court, and I think it’s very important that we have nine justices,’ Trump told reporters at a White House event.
Video of statement by Trump here.
Note: There the majority of Justices on the supreme court are already republican nominations. There are now 8 justices, with 5 of those having being nominated by republicans and are considered ‘conservative, being nominated by Donald Trump (Neil Gorsuch 54-45, Brett Kavanaugh 50-48), George W Bush (John Roberts 78-22, Samuel Alto 52-48) and George H Bush(Clarence Thomas 52-48). There are three ‘liberal’ justices, two appointed by Obama (Sonia Sotomayor 68-31, Elena Kagan 63-37) and one by Clinton(Stephen Breyer 87-9). The numbers following each name reflect the vote in the senate to confirm each judge, with some confirmed almost entirely along party lines, but others gaining bipartisan support.
This means Trump sees a simply majority of justices appointed by the republicans as insufficient for ‘justice’, at least as Trump sees justice in this case, to be done.
Granted, those nominated by the Bush presidencies had to be approved under a democrat controlled senate, as those appointed by Obama had to be approved by a republican senate. Perhaps this means those who required some support from both parties (three republican nominated justices and two democrat appointed justices), may be considered less strongly aligned to any specific party. Note that in some cases, any support from outside the nominating party was very minimal. However, like Bader Ginsburg, who was confirmed by a 96-3 vote, some of these appointees were strongly confirmed by senators from both sides of politics. The replacement for Bader Ginsburg is very unlikely to be supported by both parties, or even by all of the republican senators. The new nominee will mean, for perhaps the first time ever, their will be majority of supreme court judges not only nominated by the same party, but who were confirmed for that part by a divided senate voting almost entirely on party lines.
Note that:
With only a few exceptions, states run elections. By virtue of Article 1, Section 4 of the Constitution, state law governs almost every facet of the electoral process, including most aspects of voter eligibility, the location and hours of polling places, candidate access to the ballot and the members of the state’s Electoral College.
The guardian
Not only does Trump feel the result of the election will require intervention by the Supreme court, but that intervention will require a sufficient majority of ‘conservative’ appointments, as not even all conservative justices would support his desired outcome.
Trump has telegraphed he may appeal to prevent the counting of mailed in ballots, feeling that as precautions for Covid-19 are less likely to be taken by his supporters, removing these votes will give him a majority in key states.
‘Preparing’ the court for future Trump/presidency cases
Ok, so surprisingly Trump even announced the supreme court balance being a potential key factor in his rush. However, that may not be his only motive. US presidents do not have full immunity from prosecution.
In a 5-4 decision, the Supreme Court ruled that the President is entitled to absolute immunity from liability for civil damages based on his official acts. The court emphasized that the President is not immune from criminal charges stemming from his official (or unofficial) acts while in office.
Nixon_v._Fitzgerald
Note the 5-4 decision, and the decision being by the Supreme Court. Trump is currently under tax investigation and given the number of Trump associates who have been investigated, Trump being investigated in future is certainly possible. Other questions may arise following his time in office, for example:
Note, twitter link requires update.
The majority of Trump campaign funds spent in August are not accountable
More than three-fourths – $46m out of $61m – of the funds spent by the Trump campaign in the month of August is not accounted for, according to nonprofit democracy advocacy group the Campaign Legal Center.
The money has been funneled through American Made, the LLC created and managed by senior Trump officials, making it essentially untraceable. The group also found Trump’s campaign had received $10m in donations from Kelcy Warren, CEO of Energy Transfer Partners, which owns the Dakota Access Pipeline and is reportedly hoping for a multi-billion-dollar deal in Ukraine if Trump is reelected.
The revelations are just the latest in transparency concerns surrounding Donald Trump, who is the only president in US history to refuse to release his tax returns.
The Guardian
Illegal? Not necessarily, but certainly suspicious and open to investigation.
How many skeletons are there in the closet?
The issue of prosecution of a former president is complex and would move into unprecedented areas. Certainly, a sympathetic Supreme Court sounds like it could be helpful if you are Trump.
Updates:
- 2020 September 27 : Initial version