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.

How I'll Be Voting - An Update

In August of last year I sketched out some issues I thought key for this presidential election.  With South Carolina's Republicans voting yesterday, it seems like a good time to take stock.

For the sake of discussion, I'll assume a three way race between President Obama, Mitt Romney and Newt Gingrich.  This ignores the other Republican challengers and third party candidates.  A third party vote can be a powerful message, and may even be necessary in the present climate, but we'll leave that topic for another day.

One more caveat: I've drawn heavily on candidate's own official policy statements.  A fuller consideration would include their campaign statements, policy history, and analysts' predictions of future actions.  One could write a dissertation on many of these questions.  I mean only to start a discussion, not give the final word.

So how do the candidates stack up?

Debt.  Will they balance the budget?  That may require raising taxes, cutting spending, or both.  That may mean reforming the procurement process or passing a balanced budget amendment.  The specifics can vary, but we need to see a plan.

• Romney is calling for a program of "cut, cap, and balance."  He wants to reduce spending, capping government expenditures at 20% of GDP, and then pass a balanced budget amendment.  He acknowledges that entitlement reforms will have to be part of the picture.  He argues that "we have a moral responsibility not to spend more than we take in."  To do so is a cruel burden on our children and grandchildren.  If one wants to be cautious, however, we might note that Romney has criticized the president's stimulus spending as adding to the debt, but - from what I can gather - Romney is more concerned about the spending part of that equation than the debt.  His basic plan is to cut taxes to revitalize the economy, thereby raising revenue.  The Laffer Curve sometimes looks like that, and it might work, but it might not.  I worry that he may not be willing (1) to cut expenditures as deeply as he wants to cut taxes, and (2) to raise taxes to avoid Greek-style debt.
• Gingrich states that balancing the budget is one of his goals and has put forward a white paper on entitlement reform.  The budget is, however, 7th of his 9 economic priorities.  Moreover, he proposes to balance it by "growing the economy" (through tax cuts and deregulation) and "controlling spending".  Newt's first economic priority is to "stop the 2013 tax increases."  While I'm no fan of taxes, this maniacal emphasis on cutting them seems unlikely to lead to a balanced budget.  Yes, economic growth is part of the long-term solution to the debt, and low taxes are part of that equation, but they are not the whole story.  Nevertheless, Newt gets points for his real work during the 1990s to balance the federal budget.  Past performance is no guarantee of the future - balancing the budget in the boom years of the '90s was certainly easier than in today's economic climate - but it counts for something.
• Obama's position page on the economy does not mention the national debt, our credit rating, or the problem of the deficit.  Instead, he discusses jobs, the auto industry, Hispanic families and women.  I don't mean to be cynical, but this is a naked appeal to some pretty specific interest groups, without consideration of the big picture.  Given the way the national debt has ballooned under President Obama, he offers little on this issue.  The one thing that can be said for the president is this: much of the debt that has accumulated during his years in office came from two wars he inherited, one of which he has ended, the other of which he is drawing to a close.  This will lead to substantial savings, though it hardly amounts to a concerted deficit plan. 
• Winner?  I think Romney edges Gingrich out on this one, but all three candidates could focus more clearly on the debt.

Tax Code.  Put simply, ours is too large and too complicated.  It's a drag on the economy, a distortion of market forces, an invitation to corruption, and a revenue sieve.

• Romney advocates tinkering with the tax system, but hardly the overhaul it needs.  This may be politic, but it's not leadership.  His stated long-term goal is to "pursue a fairer, flatter, simpler tax structure," but his articulated policy details all pertain to modest tax cuts, not closing loopholes and shortening the tax code.
• Gingrich advocates an "optional flat tax of 15% that would allow Americans the freedom to choose to file their taxes on a postcard."  This is good.  The problem is that it's optional.  Individuals and companies will still have an incentive to lobby for special exceptions.
• Obama only appears interested in closing loopholes if they're advantageous to Wall Street.  His own campaign website promises special tax incentives for clean energy technologies and small businesses.  I'm not opposed to either, but the president is doing nothing to fundamentally reform the tax code.
• Winner?  A Romney-Gingrich tie.  Both seem to have the right idea, but insufficient plans to execute at this time.

Immigration.  We need to secure our borders, reform the system for legal entry, and address the problem of the large illegal population currently living in the States.

• Romney hardly has an immigration plan.  He vows to "explore with Mexico, in his first 100 days, the need for enhanced military-to-military training cooperation and intelligence sharing to combat drug cartels and criminal gangs. Mitt Romney will complete a border fence protecting our southern frontier from infiltration by illegal immigrants, trans-national criminal networks, and terrorists."  So he's serious about securing the border.  But we need more.  I see little interest in immigration reform, and on the touchy issue of the present illegal population, he has taken a hardline stance that either ignores the size of the problem or implies a police state. 
• Gingrich hits the nail on the head, directly addressing the issue - unlike Romney's comments, buried in his foreign policy positions - and calling for all three elements of a solution.  He might not get his way, or particular elements of his policies might not work, but this is the best I've seen of the mainstream candidates.
• Obama certainly styles himself a friend of the Hispanic community, but his website makes no mention of the immigration issue.  That may be because he's set the record for deportations.  This powerful stick has not been accompanied by the carrot of comprehensive immigration reform or a push therefore.
• Winner?  Gingrich unambiguously comes out ahead.

Education.  We're looking for school choice, open enrollment, more charter schools and vouchers, and a willingness to fight the NEA.

• Romney is a firm supporter of school choice.  Excellent.
• Gingrich also supports school choice (though a few details differ).
• Obama has made education a major element of his campaign.  However, his education policy page primarily trumpets the spending of money.  Considering the NEA's massive contributions to the Democratic Party, don't expect the president to rock the boat.
• Winner?  Another Romney-Gingrich tie.  The biggest unknown here is how far either one could get on actual reform before Washington chokes it off.

Marriage.   Late, and somewhat reluctantly, I have found myself placing this issue in the top tier.  I tire of the culture wars, but I have become ever more convinced of the centrality and importance - not to mention sanctity - of the institution of marriage.  Attempts to foist so-called same-sex marriages on the nation are ultimately a violation of conscience for those who cannot support them.

• Romney's tangled history of positions on abortion call into question his adherence to the moral positions of his Mormon faith.  Nevertheless, the fact that he comes from a church famed for its strong families, and the fact the he remains married to his first wife, are good signs.  However, Romney was once known as a supporter of same-sex marriage.  He now opposes it, and explains that he was "firmly in support" of protecting gays, lesbians, bisexuals, and transgendered persons (GLBT) from discrimination, but he always opposed same-sex marriage.  If that's an accurate representation of his views and policies over the years then I think he's right on target.  But this may simply be waffling.
• Gingrich has a tumultuous personal history of failed marriages.  That's troubling, though (1) I do believe in conversion and (2) nothing says a personally flawed leader cannot produce good policies for the nation, though I would be skeptical of such an outcome.  Nevertheless, he has come out strongly against same-sex marriages.  I do worry, however, that his position on this matter risks alienating moderate voters by sounding hateful; this is a difficult issue and any candidate should tread with care.
• Obama has positioned himself as a champion of the GLBT community.  He has highlighted his opposition to the military's "Don't Ask, Don't Tell" policy, though this is one of the least controversial issues in the field of GLBT rights.  The president has carefully avoided using the M word with regard to same-sex relationships, but he trumpets his support for "lesbian widow Edith Windsor in her suit
  against DOMA [the Defense of Marriage Act]."
• Winner?  Gingrich, by a nose.  His personal life notwithstanding, he's probably the most likely to sign pro-marriage legislation.

 A couple final notes on two important issues that didn't make the short list.  In the realm of foreign policy, I find President Obama to have been fairly impressive.  He brought the hunt for Osama bin Laden to a conclusion, brought the troops home from Iraq, and toppled Libyan dictator Muammar Gaddafi without putting American boots on the ground and while making our European partners take the lead.  That's a fairly impressive record, one I would be surprised if either Republican could surpass.

As I've argued before, the right to life - particularly the life of the unborn - is terribly important in a general sense, but is largely out of the hands of the president.  The one exception is the appointment of Supreme Court justices.  President Obama's appointments have been in favor of abortion; given Romney's checkered history of positions, I worry he might appoint the next David Souter.  Gingrich is the only candidate of the three I feel confident would appoint an anti-abortion justice.

What do you think?  Please, share your thoughts in the comment field!

Today's image of the 2008 Democratic National Convention comes via Reuters.

Bumper Stuck

Note: The following is a guest post by our friend Philip Blaxton; he originally posted it at his blog, Arrows in Our Quiver.

The phenomenon that is the bumper sticker is marked usually by over-stated positions, over-generalizations, or over-used clichés; perhaps they become a cliché having been a bumper sticker first. Am I the only one who flirts with the limits of the posted speed to catch a glimpse of the owner of a slogan I find particularly thought provoking or enraging? The entire goal of an automotive posterior decal is to catch the eye of the other drivers, make a point, be witty and memorable, and do it all at 70 mph. Given these criteria, I have recently witnessed two very successful pieces of car flare that I, obviously, deem worthy of comment.

The first bumper sticker, stuck cock-eyed next to the classic "KEEP YOUR LAWS OFF MY BODY" was blue with white lettering and read "IF YOU CAN’T TRUST ME WITH A CHILD/ YOU CAN’T TRUST ME WITH A CHOICE". I had to inch closer to read it again, since at first glance I wasn't able to grasp the point. The intended message, as far as I perceive it, sets in contrast the "sacred choice" a woman has as granted from her reproductive freedom against the sacred duty of parenthood. Given more space, it may read thus: "the choice I have to continue this pregnancy or not is a fundamental right that I have; if you cannot trust me to make this first, fundamental choice, how can you, then, trust me to make all the rest of the choices I will need to make as a result of not making this first." The argument makes sense from the pro-abortion point of view only, however. Why is it that any one person can be "trusted with a child?" Even more than raising them to know right from wrong and to always put forth their best effort, at the most basic level, a person can be trusted if that child will be kept safe while under said person's care. The stark truth is that this "choice" with which the woman is faced is whether or not to KILL the child. This can hardly be compared to the parent’s choices of pets, schools and ice cream servings he will make for his children until they are freed of his supervision. The bumper sticker has it backwards: "You cannot trust me with a child because you cannot trust me with this choice." Because ultimately, the baby may end up dead.

The second is perhaps more poignant. Its companion on its unkempt car read, "War is terrorism on a bigger budget," which could itself find an entire post dedicated to it. Our focus, though, will be on the yellow one that said, "Just say NO to sex with pro-lifers". My first thought, as I tried to decipher the meaning, was that the author (do bumper stickers have "authors"?) was pointing to the irony of future demographics in which all the pro-abortion people have chosen themselves out of contention, while all the pro-lifers keep producing rodent-sized broods and command the political/cultural sphere. But the conclusion is much more sinister. Historically, abortion has been, so to speak, the last line of contraception/birth control. The sexual revolution failed to account for the consequences of "freeing your inner sexual being", so if condoms didn't work, an abortion was the final solution so as to continue a sex life as one wishes. Abstinence only sex education will never be effective, we are told, because people are simply unable to control themselves—or at least shouldn’t have to. This bumper sticker elevates the abortion lobby to a new plateau; no longer is it about exercising one's libido consequence-free, but it plainly is about killing babies and nothing else. In other words, the sticker is admonishing us to make sure that every pregnancy has the opportunity, or potential, to be terminated. Sex with pro-lifers leads to babies who are not aborted.

It is the same dark, poisonous ideology in operation here as that at whose hands countless millions died in Europe not so long ago at all; one in which man is sacrificed for the sake of morality.