Now that Donald Trump has effectively secured the Republican presidential nomination, his work begins to convince pro-lifers who voted for other candidates to rally around him. He impressed some pro-lifers last week by hiring veteran pro-life legislative advisor John Mashburn as his policy director, and now he’s promising pro-life judicial nominees, as well.
During a Tuesday interview with Bill O’Reilly, Trump said:
I think one of the biggest things happening in terms of this election are, you know, it could be as many as five judges will be appointed over the next four and a half years. So we’re talking about five judges. And I think probably the most important thing that — one of the most important things, other than the security itself of the country — is going to be the appointment of four to five Supreme Court justices, and I will be doing that […] Well, they will be pro-life, and we will see about overturning [Roe v. Wade]. But I will appoint judges that will be pro-life, yes.
Taken at face value, Trump is running on a pro-life platform that isn’t perfect but would move everything in generally the right direction…but can we take it at face value, given his notoriously checkered record on the subject? His latest statements here are welcome, but they don’t fully correct his past blunders. Despite the fact that he’s explicitly endorsed Roe’s overturn elsewhere, here he avoids specifically promising that his judges would vote to do so. Why?
Further, the three names he’s floated as potential nominees— Third Circuit Judge Maryanne Trump Barry (his sister), 7th Circuit Judge and former Wisconsin State Supreme Court Justice Diane Sykes, and 11th Circuit judge and ex-Alabama attorney general Bill Pryor—have been decidedly mixed. Pryor is great, but Sykes struck down Planned Parenthood defunding and Barry voted to uphold partial-birth abortion.
Despite eventually denying he’d nominate his sister, Trump subsequently raised doubt that he understood why her vote was a deal-breaker when he suggested he deserved an apology because Justice Samuel Alito had also ruled against the same law… despite Alito making clear he was following controlling precedent as a technicality, while Barry argued partial-birth abortion must remain legal on the merits.
Especially given the intensity of this primary battle and the number of red flags in his record, Team Trump needs to step up their game if they really want to reassure pro-lifers they can trust him.
Trump needs to recognize the judiciary is too important a subject to skate by on platitudes about “legislating from the bench” or “pro-life judges.” Instead, he should bother to learn the legal dimension of abortion on a deeper level, familiarizing himself with the fallacies behind stare decisis and the undue burden test, why privacy doesn’t entail a right to abortion, how many of abortion’s own champions admit how legally baseless it is, and the right to life’s roots in the 14th Amendment and our common-law tradition.
Anybody can say “my judges will be pro-life” or “won’t be judicial activists.” But being able to speak knowledgably on the criteria needed to dismantle Roe and identify pro-life originalist jurists would go much further to convincing people he really means it. Accompanying that display of expertise should be a list of potential nominees whose records as exemplary legal minds and principled pro-lifers we can independently verify for ourselves.
Finally, Trump needs to recognize that judges aren’t the only thing we need to change. Trump should study and adopt his rival Ted Cruz’s excellent plan to rein in judicial activism through judicial retention elections and legislation such as the Sanctity of Life Act to curtail the Supreme Court’s jurisdiction over abortion, and add in the threat of impeachment for judges who place abortion above their oath to the Constitution.
Judicial nominees are just one aspect of the pro-life cause the next president will need to get a handle on, and pro-lifers will have to decide for themselves how all this shakes out in terms of how they’ll vote. But if Trump really wants pro-lifers on his side, this is how he needs to start.