The third wing of the United States federal government, the Judiciary, tends not to receive as much attention as the Executive (the President) or the Legislature (Congress). However, there is a compelling argument that the Supreme Court may play a considerable role in the following weeks for the Republican Party.
At the moment the Republicans are divided: join with the fraud-outsider, Donald Trump, or resist his brand of demagogic populism. Of course, the race isn’t over: National Review recently endorsed Ted Cruz, arguing that the Texan Senator was the only chance to chance to hold Trump at bay in the primaries, and Hillary at bay in the general.
This is a last resort for many Republicans, but it may well be too late. Should Trump win Florida next week, it will be very difficult to stop him becoming the Republican nominee. Should that happen, some within the Republican ranks would rather forfeit this election than see the party they love be stolen by the style of race-baiting, divisive language of Donald Trump.
There is a big problem for these figures, from Mitt Romney to Lindsey Graham and Ben Sasse: the next President will appoint at least one, perhaps as many as three or four Supreme Court Justices.
Under the Constitution the President selects nominees for vacant seats on the nine-person Supreme Court, and these nominees have to be approved by Congress. With the recent passing of conservative justice Antonin Scalia, there is a vacant seat. The Republican held Congress has made it known publicly that they will refuse any nominees sent by Democratic President Obama. This has caused considerable debate, but the Congress is within its rights to refuse any nominees sent down by the Oval Office.
However Congress will not hold out forever. The next President will be nominating new Justices, and that is very important.
The Republicans may care more about controlling the Court than the Democrats. For many conservatives, the Judiciary is their last defence on a range of social issues, from political donations to abortion, gay marriage to Obamacare. Justice Scalia was a hero for constitutional conservatives who believed that the Constitution was a fixed document, and that laws should be based off a straight reading of the text, as opposed to the ‘living document’ argument that allows for re-interpretation as long as the core message of the Constitution is maintained. Should the Democrats win the White House, the Supreme Court will veer liberal for years to come.
That is why the New York Post has called for Republicans to unify behind Trump. Should the Republican ‘loyalist’ wing refuse to accept Trump, and support a third-party ticket purely in order to ruin Trump’s chances against the Democrats, they will potentially be yielding the Court for a generation.
Trump is far from the ideal candidate for these Republicans, but he may be controllable. Cynical as it is, some within the GOP consider it most important to put any Republican in the White House, if only to prevent the Democrats overwhelming the Supreme Court.