The latest nominations of ten fine lower court judges makes clear that President Trump is the best President for judicial selection since at least Ronald Reagan, particularly in his willingness to nominate conservative legal academics likely to have extraordinary influence. He has certainly been aided by having a Republican Senate, and by relying on the network of the Federalist Society, but the nominations are his own.
And they will receive almost universal approbation among conservatives, classical liberals and libertarians. That includes those who supported Trump and those who were Never-Trumpers, although it is somewhat embarrassing for those Never Trumpers who said the candidate could not be trusted to select good judges or even to choose justices from the list he announced. As I said before the election, precisely because of his other heterodox stances, Trump would follow through on his unifying judicial commitments.
Appointing judges whose ideal is to enforce the Constitution as written unites almost all strands of the political right. For traditional conservatives, the Constitution represents an anchor against too rapid change. For libertarians, the Constitution contains valuable limitations on government power and protections of rights. For both, originalism protects the rule of law against the latest social engineering fads of the left.
But one might wonder whether this union will survive the increasingly fierce debate between judicial engagement and judicial restraint among constitutional theorists on the right..
I have taken a real interest in the debate among libertarians and classical liberals (as well as conservatives) over whether to support Donald Trump or Hillary Clinton. In the past, libertarians and classical liberals (who I will refer to simply as libertarians for ease of exposition) have tended to split between supporting the Republican nominee and the Libertarian Party nominee. Yet, if libertarians were forced to choose between the Republican and Democratic nominees, my sense is that the great majority would support the Republican.
These days the matter is different. Libertarians like Donald Trump much less than they like the usual Republican nominees. Unsurprisingly, then, many more of them are considering voting for the Libertarian Party nominee. But interestingly many of them, when pushed on the issue, say that they prefer Clinton to Trump.
Here are some of the main views of the two camps. Those who favor Trump over Clinton believe that another Democratic Administration would be very bad for the Republic. Another 4 or 8 years, after 8 years of Obama, would be disastrous. They argue that concerns about Trump’s corruption and authoritarianism are no greater than concerns about a Clinton Administration. Moreover, the media will be scrupulous about identifying wrongdoing by a Trump Administration, whereas it will cover up that wrongdoing by a Clinton Administration.