Monday, July 18, 2016

The Fallacy of Voting to Save the Supreme Court

I know of many pro-life voters who detest Donald Trump but plan to vote for him anyway, on the grounds that the Supreme Court is at stake. They argue that Hillary Clinton is guaranteed to nominate pro-abortion justices, whereas Trump... well, might do better.

But as the recent Whole Woman's Health v. Hellerstedt decision shows, the Court already has a pro-abortion majority. (Similarly, Obergefell v. Hodges showed that it has a gay marriage majority.) A long sequence of events would have to transpire to reverse that.

First, your vote for Trump would have to help propel him to the presidency. Opinion polls vary, but no one is claiming he has more than a razor-thin lead, and when you break it out by state - which is how we elect presidents - he's trailing Clinton. Second, Trump would have to nominate a genuinely pro-life justice to fill the seat formerly held by Justice Scalia. Given Trump's waffling on the question of abortion, this is by no means guaranteed. Moreover, there is a long history of Supreme Court justices turning out to be a shade different than was advertised (recall that Kennedy was a Reagan appointee), so definitely no guarantees. Third, such a nominee would need to be confirmed by the Senate, which may well be captured by the Democrats. (In swing states, running against the party of Trump is the best thing that happened to many Democratic candidates.) Fourth, one of the five liberal justices would have to step down or die. The odds of any of them stepping down are extremely slim under a Trump presidency; they'll wait for a Democrat in the White House. So death is the only way they'll be replaced. Then repeat steps two and three. And, at last, you have a five justice pro-life majority.

I don't have a crystal ball, so I can't tell you if any of those things will happen. Some are more probable than others. But getting all six steps to occur is not likely. Let us assume 50-50 odds for each single event. The odds of getting all six is a little less than 1.6%.

A more probable outcome, should Trump be elected, is that he nominates someone whose views on matters like abortion and gay marriage are as moderate / opaque /confused as Trump's own. Such an individual might actually be approved by the Senate. And thus we would end up with five pro-abortionists, a wishy-washy, and three pro-life justices. Is that a sufficient improvement to outweigh everything you despise about Trump?

In all fairness, if Clinton were elected, in conjunction with a Democratic Senate, she could fill Scalia's old seat with a liberal. And one or more of the older pro-abortion justices could retire and safely see their seats backfilled with younger liberals. The current situation could be entrenched for decades. But the more I reflect on this scenario, the more it strikes me as emblematic of politics in general and not some special case. Every election has consequences. And because politics never stops, there is no such thing as a safe margin or done deal. Everything is always at stake. In that sense, this election is no different than any other. Rare is the truly extraordinary "crisis election" or "special circumstances." If you like Donald Trump or his policies, go ahead and vote for him. But if he would have been morally unacceptable to you in 2012 or 2000 or 1984, don't vote for him this year either.
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