Why does the GOP stick with Trump? It’s all about the judges.

Throughout Trump’s time in the White House, I’ve been wondering, like many others, what would it take for the GOP to break with Trump. I never thought for a moment that they’d break with him over a question of law or constitutional principle or democratic norms or political propriety. My working assumption, for most of this time, has been that if they felt like their tax cuts were in jeopardy, they might jump ship, tax cuts being the one thing that unites the party and that they know how to do. But things aren’t looking good for the tax cuts, and I see no signs of any break.

So we’re left with the question: why is the GOP sticking with Trump? They’re getting so little from him, relative to Republican presidents past. Consider the following:

According to today’s Wall Street Journal, Democrats still control the National Labor Relations Board and are helping shape its agenda. That has created considerable consternation among the business lobbies that depend upon Republican antipathy to organized labor dictating the outcomes of federal agencies.

In the last couple of weeks, the Journal and the Times have reported on similar phenomena at the Federal Regulatory Energy Commission (new oil and gas pipelines are having a tough time getting approved) and the Commodity Futures Trading Commission (no easing up on Obama-era regulations of the futures market) and the Justice Department, where classic Trumpist issues like gangs, anti-terrorism, and drug trafficking are getting short shrift because Trump has failed to appoint a single US attorney to replace the 93 US attorneys he fired back in February.

Even on immigration, the Washington Post recently reported that the Trump administration has approved or renewed hundreds of thousands of DACA permits for immigrants—much to the rage of Trump’s anti-immigrant base.

I’ve been flagging Trump’s failure to exercise control over the state apparatus for a while, and one of the counter-arguments is that this is part of Bannon’s plan to downsize the state. But these failures to control the state don’t just involve the soft welfare-ish side of the government. Some of these failures are making it difficult for Trump to pursue the nastiest, most coercive parts of the hard-right agenda that no one doubts Trump, Bannon, and the hard right wish to pursue. And remember: where some of Trump’s failures have to do with his inability to get the cooperation of Congress or the courts, these are the areas of executive power where Trump has a relatively free hand, where he can act without a lot of consultation or interference. He simply hasn’t exercised it.

So what keeps the GOP, particularly the elite sectors, with Trump? Like David Dayen, I’ve begun to think it all comes down to the judiciary. Trump has gotten one Supreme Court appointment, he may well get more, and he’s moved more quickly on lower-court appointments than Obama did. The legal arm of the conservative movement is probably the best organized, most far-reaching and far-seeing sector of the right. They truly are in it—and have been in it—for the long game. Control the Supreme Court, stack the judiciary, and you can stop the progressive movement, no matter how popular it is, no matter how much legislative power it has, for decades.

It may seem ironic that a movement that came to power on the basis, in part, of a populist surge against “activist judges” would come to rely upon the judiciary as its most reliable weapon. But it’s not: while conservatism, from its beginning, has struggled to be an elitist movement of the masses, a populist movement for privilege, it has never departed from its elitist origins and supremacist mission. Going back to the rotten boroughs and Lords of early 19th century Britain, the right has always relied upon the least democratic sectors of the state. With this embrace of the judiciary as its last bastion of power, the right has come home.

If there is an irony here, it is this: Since Trump’s election, and before that, liberals have seen the Constitution as the greatest weapon against the hard right. But long after Trump is gone, the hard right will be relying upon the judiciary—and behind that, the Constitution—to protect their gains. As was true of the late nineteenth and early twentieth centuries, the right will depend upon unelected judges interpreting the law, in defiance of the popular will. The very thing, in other words, that liberals think is the antidote to Trumpism—the Constitution—will turn out to be its long-term preservative, the elixir of life.


  1. mark June 15, 2017 at 10:17 am | #

    Amongst all the political oddness both in the US and the UK, these extreme situations in which Conservatism has recently found itself are really proving where its priorities lie, and helping the historian out no end.

  2. Matt Hardwick June 15, 2017 at 11:05 am | #

    Then this long game has sucked for 30-80 years. The Constitution duped both sides into playing it.

    Or to put it another way: A stitch in time did save nine from Roosevelt and succeeding Presidents and Congresses, but for the good of Democracy in this Republic, the 1937 Right had to call Roosevelt’s bluff.


  3. Larry Houghteling June 15, 2017 at 11:35 am | #

    Absolutely spot-on perfect, especially the last paragraph.

    It’s obvious to me and I’d hope to most of you that — at the very least! — Supreme Court justices should serve limited terms, say, ten years. But what are the chances of amending the Big C to do that? As H.G. Wells so presciently put it, “Americans imprisoned themselves in their Constitution, and the rest of their history are the extraordinary results.”

  4. Michael Culley June 15, 2017 at 1:13 pm | #

    If they overplay their hand, which they might do, they could find all three branches of government in Democratic hands in 2021. Then adding one or more justices to the supreme court might be a way to keep revanchist policies at bay.

  5. Steve Hamlett June 15, 2017 at 1:17 pm | #

    Not so sure. The R’s would still get the judges they want if they impeached Trump and brought in Pence. They’d get everything ELSE they want, too. So why stick with Trump? It’s all (and always) about re-election. Impeaching Trump would make instant enemies of all those voters who love Trump much more than they love their Republican senator of congressweasel, making their re-election next time around much more iffy.

  6. Arthur Reber June 15, 2017 at 1:19 pm | #

    Beg to differ. They’d get the same political framework with Pence, the same judicial appointments, the same agency heads. Methinks there’s a more devious game being played. Trump creates chaos. Chaos attracts attention, from the Democrats, from the media, from the public. While everyone is freaking out over his antics, the GOP can (and is beginning to) move ahead with their agenda (defanging Dodd-Frank, the AHCA). Without Trump distracting everyone, the media and the public would focus on the havoc that their economic, social and educational programs will wreak. Trump’s the perfect red herring — drag it across the trail and everyone is off following the scent.

  7. jonnybutter June 15, 2017 at 2:22 pm | #

    They’d get the same political framework with Pence,

    But impeachment and removal – or resignation – would themselves be costly for the GOP. I agree that distraction is effective for the moment, but honestly, the Dems pretty much suck no matter what the GOP does. There are other ways of distracting, misdirecting, etc., and they all seem to work.

  8. Debra Cooper June 16, 2017 at 12:28 am | #

    Pence’s judges would be as right wing as Trump’s .

    It is one reason that has some saliency it is still insuficient. it is also about the base of the Republican party. They are Trumpians now as much as they are Republicans. While severe gerrymanding protects those Republican electds in those extremely safe disticts…however they are safe only if yu stay loyal to party “principles” and the party leader.

  9. mark June 16, 2017 at 5:03 am | #

    What about Trump being the personification of the Electoral College, its man of wax standing out against the terrors of the popular vote and the diminishing of the smaller states?

  10. union horse June 17, 2017 at 2:22 am | #

    Please pardon me going off here but this was just so precious:

    “If we’re not able to find teachers, we’ll be very creative in making creative ideas on how we can separate the students, break them in smaller groups, teach at a different level, math and literacy at different times, just be very creative,” she said.


    please enjoy the irony 🙂

  11. union horse June 17, 2017 at 2:58 am | #

    the hand for the judges was dealt and it is baked in.

    when the Court defines an issue in law it does provide Legislature with opportunity to craft law itself, anew.

    The People, in Congress is what it says in the foundations. Top priority must be to abolish the Gerrymander. Before 2020.

  12. Billikin June 18, 2017 at 11:54 am | #

    Don’t forget inertia. The Republicans don’t need a reason to stick with Trump. They need a reason not to.

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