The Trump legal movement was never transformed into a plan to pack the courts.


President Donald Trump speaks to reporters as he leaves the Capitol after addressing the Republican House Conference on Thursday.

Bill O & # 39; Leary / The Washington Post via Getty Images

In October 2016, a few weeks before the presidential election, a group of 29 prominent "originalist" legal scholars produced a extraordinary statement condemning the candidacy of Donald Trump. Despite Trump's avowed enthusiasm for the originalist judges, these legal luminaries wrote to warn of the dangers that the Republican candidate represented for constitutional values. "Our Constitution confers on one person the executive power of the United States," they said in the statement. "In light of his character, judgment and temperament, we would not give that power to Donald Trump."

The letter went on to issue a strong accusation against Trump's then contempt for the Constitution and warned against the kind of compromises that would allow the originalists to repress their noses and vote for him:

Many Americans still support Trump in the belief that he will protect the Constitution. We understand that belief, but we do not share it. Trump's long record of statements and behavior in his campaign and in his business career has shown him indifferent or hostile to the basic characteristics of the Constitution, including a government with limited powers, an independent judiciary, religious freedom, freedom of expression and due process. Of law.

The signatories noted a number of reasons to be concerned about Trump's commitment to constitutional principles: his admiration for foreign dictators, his disregard for the basic principles of equal protection of the laws and his lifelong tendency to "[treat] the legal system as a tool for arbitrary and discriminatory purposes, especially against those who criticize him or his policies. "In case some of this was not clear, they added that a justification of" but the judges "to vote by Trump was insufficient: "[We] I do not trust that he respects the constitutional limits in the rest of his conduct in the position, of which the judicial nominations are only a part."

In this document is currently located as a species of historical artifact, a last sigh of legal trumpism never from the great figures of the conservative legal academy.One of the signatories, the co-founder of the So Federalist and professor of the Pritzker School of Law at Northwestern University Steven Calabresi said Fortune at that time that it would be wrong for the Conservatives to sacrifice the principle only to occupy a seat on the Supreme Court. "As important as the Supreme Court is," he said, "there are other things that are much more important, like defense and foreign policy, and Trump is, by temperament, unable to do a good job in this." Trump is impulsive, totally devoid of self-discipline, petty and vengeful. "

A year later, at the conference of the Federalist Society last week, they were distributing stress balls with "But Gorsuch!" printed on them. Earlier this month, the old Calabresi who hated Trump also proposed a plan to allow Trump to match the courts with the judges of his choice, so that the Republican-controlled Congress "allocates appropriate funds to increase the size of the lower federal courts. " How big should it be? the federal courts? The "optimal number of active circuit court judges is at least twice the current number of 167 authorized jurisdictions," says Calabresi, "and more likely between 2.5x and 3 times the current number." Ron Klain notes that Calabresi is also proposing that Congress abolish 158 administrative law jurisdictions in federal regulatory agencies and replace them with 158 judges selected by Trump. And all this must be done before the 2018 elections.

As noted by Ian Millhiser, Calabresi's note, which he co-authored with the recent graduate of Northwestern Shams Hirji University Law School, "seems to advise the members of the Congress arguing that this court-packing plan is necessary for politically neutral reasons, such as overworked courts. " That supposed justification, however, is not very convincing, given that the first page of the memo notes the objective of "undoing the judicial legacy of President Barack Obama." "The plan to double or even triple the number of federal judges feels like a protection against a possible reaction to victory: when / if Trump is expelled from his position, at least the courts will be completely filled with true believers of the Federalist Society. Last year, "but the judges" were not enough to vote for Trump, now it's the reason to remodel an entire branch of government.

Trump's success in boosting surprisingly young youth candidates, mostly white and large The men's part, has proved to be a sure way to appease the evangelicals at a time when virtually none of their other promises have been fulfilled. As the president himself boasted recently, "the story of the judge is an untold story. Nobody wants to talk about that. … That has consequences 40 years later, depending on the age of the judge, but 40 years later. "

Join Dahlia Lithwick and her stable of featured guests for a discussion on the high court and the most important cases in the country. [19659014] And so we have judges like Brett Talley, the 36-year-old man qualified as" unqualified " "by the American Bar Association who forgot to reveal in his Senate questionnaire that his wife is the chief of staff of the White House lawyer." The response of the White House and the Senate controlled by the Republicans has been to discredit the ABA, eliminate the blue slip and present even more nominees for jokes.Why sit an experienced and thoughtful conservative judge if you can put adolescents and operatives?

Last year, never-Trumpers originalists told us they were playing a particular type of long play, one in which the short-term benefits of having could not afford a Republican in the White House to overcome the ramifications of electing a president not ap to, even if that meant a mbadive victory for the judges. Now, this high-minded rhetoric has been put aside in favor of a completely different long game.

This is the only issue on which Jeff Flakes and John McCains and the other Republicans who claim to have principles about Trump's failures will never do so. defect: the judges will be settled, the experience or temperament will be condemned, and they will make sure that, long after the constitutional conflagration that Donald Trump has pbaded, the court belongs to the GOP. The nonsense of the "Democrats started" on Chuck Schumer and Robert Bork will replace the calls for coherence or responsibility or the need to reconcile last year's positions with this year's. Democrats are often blamed for refusing to play the long game when it comes to stacking federal courts. The Never-Trumpers who have now decided that they love Trump are playing that game and they are winning it. They can destroy the legitimacy of the judicial branch in the process.

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