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A Poor Guide for Trump's High Court Choices

  Legal Podcast  -   POSTED: 2016/11/26 16:58

To the chagrin of the vast majority of professors of constitutional law, President-elect Donald Trump has promised to appoint judges to the Supreme Court and throughout the federal judiciary who believe that the Constitution’s original meaning provides authoritative guidance in resolving cases and controversies.

Trump said that his kind of judges would uphold the Second Amendment right of individuals to own firearms, and would overturn Roe v. Wade. That, he emphasized on CBS’s “60 Minutes,” would return the question of abortion to the states—which, given public opinion data, would likely leave abortion legal in most of the country.

Hillary Clinton hoped as president to pursue a markedly different course. In the third presidential debate, she had little to say about the Constitution. But she did signal agreement with President Obama that “empathy” is the leading judicial virtue, stating her plan to “appoint Supreme Court justices who understand the way the world really works, who have real-life experience.”

Like Obama, Clinton assumes that the exercise of empathy from the bench yields progressive results. Her justices, she declared, would reverse Citizens United so that the government could lawfully regulate independent political spending by for-profit corporations, while also protecting voting rights, abortion, and same-sex marriage. To the delight of the vast majority of the nation’s law professors, Clinton indicated that she believes in a “living” Constitution—one that evolves to accommodate progressive policy preferences.

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