Donald Trump was never the first choice of committed social conservatives, whose organizations largely lined up behind Ted Cruz late in the Republican primary. Those groups raced to distance themselves from Trump after he went off-message by suggesting that women who have abortions would be punished if the procedure were banned, followed by hasty announcements of two additional positions.
But now that Trump is the only Republican running for president, he has begun to speak the right’s language on abortion, and some social conservative groups are sounding their approval. Crucially for them, last week, Trump hired as policy director John Mashburn, a man hailed by the head of a prominent anti-abortion group as “an excellent hire, especially for the pro-life movement and our legislative priorities.”
With Mashburn, an attorney who most recently worked as chief of staff for North Carolina Sen. Thom Tillis, Trump has brought into the fold someone social conservatives trust. “He is a rock solid pro-lifer and former Helms staffer. Someone we can work with,” Penny Nance, president and CEO of Concerned Women for America, told The Washington Examiner. She was referring to the late North Carolina senator Jesse Helms, whose anti-abortion legacy lives on in the Helms Amendment, an ongoing ban on U.S. foreign aid going to abortion services.
While working for Helms in the late 1980s, Mashburn made his name on a different issue that fell under the banner of the culture wars: The fight against the National Endowment of the Arts (NEA) for funding “blasphemous” work involving Christianity and sexuality — especially gay men’s sexuality. According to the book Righteous Warrior: Jesse Helms and the Rise of Modern Conservatism, Mashburn was the one who brought the notorious “Piss Christ” work by Andres Serrano to his boss’s attention. Helms ran with it, beginning a long crusade against public funding for the arts.
According to Righteous Warrior, after Mashburn discovered the work of photographer Robert Mapplethorpe, Helms declared, “Pictures of male genitals placed on a table is not art, except perhaps to homosexuals who are trying force their way into undeserved respectability.” The pressure worked. In 1989, after the NEA withdrew funding for an exhibition about AIDS, Mashburn told The New York Times, “Senator Helms said he was much more pleased by this than he was by the N.E.A.’s reaction under the former acting chairman to the Mapplethorpe exhibition.”
Mashburn went on to work for a series of prominent Republicans on Capitol Hill, including then-Senate Majority Leader Trent Lott and then-House Majority Whip Tom DeLay. He also served as the executive vice president of the conservative American Civil Rights Union (ACRU, not to be confused with the American Civil Liberties Union) and as executive director of a related group, The Carleson Center for Public Policy. The latter organization is named for former Reagan official Robert Carleson, whose widow, Susan, is chair of the ACRU. Notably, Susan Carleson endorsed Ted Cruz, and the ACRU, which cannot directly endorse candidates, ran several blog posts condemning Trump for displaying “a clownish … disregard for the law” in claiming Cruz was ineligible to run for president. The ACRU did not respond to requests for comment on its former vice president’s new role with Trump.
Mashburn’s fingerprints may already be visible on the Trump campaign, though an effort to interview him went unanswered. On Fox News Tuesday night, Trump sounded an unusually measured note when answering a viewer-submitted question about how he would “protect the sanctity of human life.”
Trump replied directly: “I will protect it and the biggest way you can protect it is through the Supreme Court and putting people in the court,” he said. When Bill O’Reilly asked Trump if that meant he would appoint judges who would overturn Roe v. Wade, Trump was surprisingly measured, saying “as many as five judges” could be appointed by the next president, and adding of his theoretical picks, ”They will be pro-life and we will see what about overturning.”
Republican nominees have tended to stop just short of spelling out that they want to appoint judges to overturn Roe. To do so would give Democrats a clear rallying point, undermine talking points about activist judges, and interfere with the mainstream anti-abortion strategy that abortion rights should be chipped away incrementally. In 2012, Romney said, “I hope to appoint justices for the Supreme Court that will follow the law and the Constitution. And it would be my preference that they reverse Roe v. Wade.” McCain talked about overturning the opinion but said he would impose no litmus test. George W. Bush, too, talked about no “litmus test,” but ultimately appointed two stalwart opponents of abortion to the court, Chief Justice John Roberts and Associate Justice Samuel A. Alito.
By prior Republican standards, Trump was spelling things out by saying he would seek “pro-life” judges. But by Trump’s rhetorical standards, he was being diplomatic. And he was not wrong that the Supreme Court provides the most irrefutable reason for a social conservative to reluctantly line up for Trump. While it is highly unlikely that the Supreme Court would overturn the right to abortion all at once, anti-abortion strategists have spent decades laying the legal and legislative groundwork to get there eventually. That includes Whole Women’s Health v. Hellerstedt, the set of Texas abortion clinic regulations that the court is considering now, which technically don’t take aim at abortion itself but wipe out many of its providers.
Who will fill the late Antonin Scalia’s seat on the court is just the tip of the iceberg. Three justices will pass the age of 80 during the next president’s first term, two of them, Ruth Bader Ginsburg and Stephen Breyer, were appointed by Democrats.
Tellingly, some Republican senators who have so far blocked any hearing on President Obama’s Supreme Court pick, Merrick Garland, have called for Trump to say more about his potential court picks. “I think most of us believe that Trump would still appoint somebody more conservative than Hillary Clinton would, but I’d like to know more. I’d like to be more sure of that,” Arizona Sen. Jeff Flake told reporters.
Trump has said he will soon give a speech laying out his views of the judiciary, though a promise to release names of his potential Supreme Court picks in consultation with the Heritage Foundation has not yet been fulfilled. (At the Republican debate held the day Scalia died, Trump did say, “We could have a Diane Sykes or a Bill Pryor, we have some fantastic people.” Both are deeply conservative federal appeals court judges appointed by President George W. Bush.)
Hillary Clinton already has given such a speech, and she was quite explicit in what she would look for in a justice: “If I’m fortunate enough to be president, I will appoint justices who will make sure the scales of justice are not tipped away from individuals toward corporations and special interests; who will protect the constitutional principles of liberty and equality for all, regardless of race, gender, sexual orientation or political viewpoint; who will protect a woman’s right to choose, rather than billionaires’ right to buy elections; and who will see the Constitution as a blueprint for progress, not a barrier to it.”
No matter how much Trump goes off message on everything else, the contrast between the candidates on the court means that social conservatives have little choice.