White Americans have sent their message loud and clear. Now they have Trump, a man who believes American judges have the power to sign laws. With the current majorities, he can change the legal directions for decades, says Andrew Hammel.
In a deeply riven America, the only point about which all Americans can agree is this: The election of Donald Trump is the most stupendous political event Americans have seen in our lifetimes. He is the first US President with no previous political or military experience. His campaign was run by a bare-bones staff and was ludicrously amateurish. The general verdict was that he lost all three debates with Hillary Clinton. He spouted a seemingly endless series of falsehoods, racist and sexist rhetoric, and offensive remarks, any one of which would have destroyed an ordinary candidate.
Yet these supposed flaws were simultaneously the key to his appeal. He came across as abrasive, decisive, direct, and rude – but genuine. Against Hillary Clinton's scripted, poll-tested soundbites, he offered tirades against the evils of the system which were as blunt as they were vague. Both his charisma and his policy positions motivated millions of less-educated white voters to switch their votes from Obama or to go to the polls for the first time, defying all forecasts. He also attracted surprising support from white voters with college degrees, and even outperformed Mitt Romney among blacks and Hispanic voters. Trump was also assisted by Clinton's safe, lackluster campaign, which sparked little enthusiasm and left her vote totals millions short of what Obama achieved.
White Americans are the majority
Trump voters wanted to deal a savage blow to the out-of-touch elites who, as they saw it, lined their own pockets with wealth derived from insider privilege while middle-class incomes fell farther and farther behind. As a report from the Center on Budget and Policy Priorities revealed, the median incomes of white males without college degrees fell 20 percent in real terms from 1975 to 2014.
Low-income Americans, especially rural whites, are falling victim to drug addiction and family breakdown at increasing rates, and their life expectancy is actually shrinking, an alarming fact in an advanced economy. Many Trump voters saw the mainstream national media and the Obama administration as too focused on the needs of blacks and Hispanics, immigrants, and sexual minorities. Although it’s too early for a definitive analysis, white voters seem to have viewed this election as an opportunity to wrench the focus back to their needs by demonstrating that white Americans are still in the majority, and that they can play the game of identity politics as well as anyone else.
That message was received loud and clear. American commentators are still stumbling blindly through the dust in the aftermath of this political earthquake. Nevertheless, some dim outlines are beginning to emerge. I will focus on the political and legal consequences of Trump's election, both in the short and long term.
Nominations for the Supreme Court
The American Supreme Court wields outsized power in comparison to many other national supreme courts. Nine Justices are appointed for life. The President nominates Justices, but the Senate must 'advise and consent' by voting a simple majority of its 100 members to confirm the President’s nominee. Historically, this process was relatively free of politics, but that has changed radically in the last decades.
After the death of conservative Antonin Scalia, his seat has remained empty, leaving the Court with only eight members, split evenly between liberals and conservatives. President Obama nominated Merrick Garland, a 63-year-old center-left moderate, to replace Scalia. But the Republican-controlled Senate used procedural delays to prevent a vote on Garland's nomination, leaving the Court in limbo.
That has all now been swept aside by Trump’s victory, which also left the Senate with a 51-48 Republican majority with one seat still too close to call. Trump has no legal training and has revealed remarkable ignorance on the campaign trail with suggestions that the U.S. Constitution has 12 Articles (it has only 7) and that American judges have the power to sign laws. Nevertheless, Trump early on saw judicial nominations as a key to convincing traditional Republicans to sign on to his unconventional campaign. He said in debates that he would appoint conservatives in the mold of Scalia if he won, and even put forward a list of 21 solid conservatives whom he said he would consider appointing. There is no reason to doubt he will nominate from among the people on this list and others with similar ideology. These judges will interpret the Constitution in a narrow manner, remaining faithful to what they see as the 'original intent' of the Enlightenment thinkers who framed the Constitution. They will not interpret the Constitution expansively to conform to modern trends, and will tend to be more skeptical of international law and expansive interpretations of civil liberties.
2/2: Court could be reshaped fundamentally
Trump’s replacement of Scalia with a similar conservative will not affect the Court's ideological balance. Yet three of the Court's more liberal members are over 78. If Trump is able to nominate a replacement for one or more of them, the Court's ideological balance could be tipped for decades. At this point, Senate Democrats might invoke the so-called 'filibuster' rule. This antique curiosity of Senatorial custom allows Senators to prolong debate on a subject indefinitely. The only way to stop debate – and allow a vote on the President’s nominee – is to gain 60 votes. The filibuster rule allows a minority in a split Senate to block judicial appointments indefinitely, and the Democrats will surely invoke it to stop a highly conservative Trump nominee.
The problem, though, is that the filibuster rule is only a tradition. Republicans could simply change the rule, allowing judges to be confirmed by a mere 50 plus vote majority. (Democrats, faced with Republican filibusters of Obama's lower-court nominees, already eliminated the 60-vote requirement for lower-court judges in 2013.)
Changing the rule for Supreme Court justices is by no means inevitable and would be a jarring break with tradition – but so was Trump's election. If the Senate eliminates the filibuster rule and Trump lets conservative aides pick judges, he could reshape the federal court system fundamentally. Trump will not have to convince a single Democrat to vote for any of his nominees, allowing him to make much more conservative choices than any previous Republican president. For liberal Americans, this would be a disaster, casting into doubt historical decisions on gay marriage, legalized abortion, the death penalty, and dozens of other crucial issues. Conservatives will see this as merely a corrective for eight years of Barack Obama, who appointed over 300 judges – one third of the federal judiciary – and generally chose liberals.
The World is far away, thank God
Both Trump and his judges will have little interest in binding the United States to multilateral commitments. One of the clearest strands in Trump’s ideology is isolationism, a centuries-old tendency in American politics. Isolationists view the two massive oceans separating America from the rest of the world as a blessing, and see little reason why the United States should meddle in the internal affairs of other countries, either by military action or by aggressive diplomacy. Trump has criticized the Iraq war (after initially supporting it) and American participation in helping Gaddafi's fall. When confronted with arguments that globalization is "inevitable" and closer ties are unavoidable in our modern world, isolationists reject them as the typical cant from machine politicians and special interests who will benefit from globalization and neoliberal policies. Trump is only one of dozens of politicians recently coming to power on the platform of renewed interest in autonomous nation-states with strong borders.
His proposal to build a wall on the US-Mexico border is clearly legal under U.S. law, questions of cost and practicability aside. The same can be said for his proposal to temporarily ban Muslim immigration. Provided the ban only applies to non-citizens and people who do not have legal residency in the United States, it would be constitutional. The U.S. Supreme Court has repeatedly held that immigration policy is a question for the other branches of government, and that the government may discriminate on any basis it chooses when it comes to regulating immigration, since foreign nationals do not have a protected legal interest in entering the United States. Indeed, Congress has already delegated to the President so much authority that President Trump could ban Muslims with a simple executive order, not even requiring a Congressional law.
Campaign bluster or sincere plans
In his rambling, stream-of-consciousness interviews and speeches, Trump suggested he embraced waterboarding and revenge strikes against the families of terrorists. He has suggested that NATO is much too reliant on American military might, and that European NATO allies must start shouldering more of the defense burden. He also endorsed punishing tariffs to protect American industries. He does not believe in international global-warming accords, and has promised to nullify President Obama's executive agreement with Iran to restrict that country’s nuclear ambitions.
The most important question facing America – and the world – is whether these statements were mere campaign bluster. Any move to actually implement these policies could invoke stiff resistance from the US military and diplomatic corps, and from American allies. Trump may well climb down from these more extreme positions. He may make minor policy changes, sell them as fundamental, and declare his campaign promises fulfilled. On the other hand, he may feel compelled by his base to fight hard for the radical change they expect. In that case, he will be a bull in the china shop of American diplomacy and trade policy.
We will find out much in the coming weeks as Trump’s cabinet choices emerge and his policy team comes together. If they are as unconventional as the first choices indicate, both America and the world will be in for four stormy years of unpredictable change. And of course, that will be just what the voters who elected Trump wanted.
The author, Andrew Hammel, is former Professor for American Law at Heinrich Heine Universität Düsseldorf, and is currently a writer and translator, and teaches as an adjunct professor at several German universities.
Prof. Andrew Hammel, LL.M. (Harvard), United States Presidential Election: Trump, the Courts and the World . In: Legal Tribune Online, 15.11.2016 , https://www.lto.de/persistent/a_id/21157/ (abgerufen am: 25.04.2024 )
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