Moreover, experience has taught us that, ultimately, it is the president’s decision who to nominate. President Ronald Reagan was burned after the failed nominations of Robert Bork and Douglas Ginsburg, so he fell back on the “Sacramento Republican,” Anthony Kennedy. President George H. W. Bush didn’t want to wage a massive confirmation battle, so he nominated “stealth” candidate David Souter to replace Justice Brennan. For President George W. Bush’s second selection, against all conventional wisdom and advice from outside groups, Bush selected his White House counsel Harriet Miers. Fortunately, after a massive backlash from the sorts of people Bush should have listened to in the first place, Miers withdrew, and Judge Alito was appointed in her stead. (Perhaps Bush liked the fact that Alito signed Judge Trump Barry’s bill.)
Simply stated, no matter what advisers say, the president does what he wants for Supreme Court nominations. But the risk is much higher for a Trump presidency. A candidate who views the law as a means to an end, and has no grounding of constitutional limits, will be an absolute disaster when it comes time to picking a nominee. One can even imagine Trump striking a deal with Senate Democrats: swap a liberal Supreme Court justice for building a border wall. What a terrific deal! (In any event, the construction of the wall will be held up for years with waves of challenges based on environmental-impact statements and eminent-domain proceedings.) Or maybe Trump will appoint one his cronies to the Court, like Lyndon Johnson did with Abe Fortas.
More troublingly, to the extent that President Trump continues President Obama’s abuse of executive action, the sort of justice a President Trump will look for is a deferential jurist who will uphold his constitutional violations. For all of Trump’s ridicule of Chief Justice Roberts for upholding Obamacare, the unpresidential nominee would likely want to appoint a justice to uphold his agenda, and look away from all manners of his demagoguery. President George W. Bush was committed to “judicial minimalism,” and appointed a justice who would defer to government, and be supportive of his war on terror: John Roberts. In the last sentence of NFIB v. Sebelius, which rewrote the Affordable Care Act’s insurance mandate as a tax, Chief Justice Roberts explained that “the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.” We may as well print that slogan on a red baseball cap.