Neither Donald Trump nor Hillary Clinton are true conservatives. However, since Hillary is more conservative is some ways, conservatives should vote for her over Trump. That, at any rate, is the argument advanced by Robert Zubrin in his article “Why William F. Buckley Would Vote for Hillary Clinton.” Erica Grieder has advanced a similar argument in the Texas Monthly. It seems that even Hillary herself has seized on the possibility of capturing the votes of disaffected Republican voters. Her campaign even seized on Ted Cruz’s RNC speech, tweeting “vote your conscience” with a link to a voter registration page.
I believe, however, that Zubrin and Grieder’s arguments are mistaken. I will fully admit that from a conservative viewpoint Donald Trump is a disappointing candidate. Nevertheless, to claim that conservatives, or for that matter anyone, ought to choose Hillary is to miss several crucial points.
Let us start with the Supreme Court. Liberals and conservatives really have two very different understanding of legal jurisprudence and the role of the judiciary. In the conservative view, the role of the Court is to interpret the laws passed by the legislature and evaluate them in light of the Constitution. In this view, the Constitution is set and fixed. As Justice Scalia provocatively said, “[It is] not a living constitution, it’s a dead constitution. The constitution is not a living organism, it’s the law.” By contrast, liberals view the Constitution as a tool to be used by the justices to guide the advancement of society. Of course, liberals and conservatives also disagree about what constitutes the advancement of society, but their disagreement in jurisprudence is a separate and distinct argument.
This disagreement means that the judiciary is, in a way, weighted to the benefit of one side, because while conservative justices will not strike down laws just because they view them as bad legislation, liberal justices will have no such compunctions. In the liberal living-constitution, if a justice views a piece of legislation as deleterious, his or her job is to find a way of interpreting the Constitution that will allow him or her to disqualify the law in question. (I have criticized this approach here.)
The next president will most probably be able to appoint enough justices to the Supreme Court so as to shift its make-up by giving it a substantial liberal or conservative majority. If Hillary is elected and succeeds in packing the Court with a liberal majority, the Supreme Court will be able to impose the liberal vision even if Congress stays Republican and the Executive reverts back to a conservative. The damage done by giving Hillary the ability to tilt the Supreme Court leftwards would reverberate long after she would leave office.