Trump’s New Supreme Court List Serves a Different Purpose Than the Old One

This article appeared on Newsweek on September 17, 2020.
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In 2016, Donald Trump’s unusual announcement of potential Supreme Court nominees was a political masterstroke. The conventional wisdom was that presidential candidates shouldn’t make public a list of personnel they’re considering for key positions, because that puts a target on the backs of those people and ties the campaign to their positions and controversies.

Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court

The brutal confirmation battles we saw over Supreme Court Justices Neil Gorsuch and Brett Kavanaugh are symptoms of a larger problem with our third branch of government, a problem that began long before Kavanaugh, Merrick Garland, Clarence Thomas, or even Robert Bork: the courts’ own self‐​corruption, aiding and abetting the expansion of federal power.


But Trump needed to shore up support among conservatives, who were understandably wary of the Democrat‐​donating celebrity real‐​estate developer. And Justice Antonin Scalia’s passing had elevated the importance of the Supreme Court in the election even more directly than would the usual debates over abortion, guns, and other legal controversies. Trump produced a list of judges that held the Republican coalition together and attracted swing voters in key states.

Trump then rewarded that coalition, and the faith of those conservative voters, by picking Neil Gorsuch and Brett Kavanaugh from his list. He’s also had more than 200 federal judges confirmed, more than any president in one term except Jimmy Carter, for whom a heavily Democratic Congress created many new judgeships to fill as a consolation for not being able to select any Supreme Court justices. And the ratio of originalist‐​textualist movement conservatives to establishmentarian hacks among Trump’s 53 circuit judges—Obama had 55 in two terms—is higher even than George W. Bush’s well‐​oiled nomination machine.

This has been Trump’s greatest success in domestic policy, so the president didn’t need to add to his judicial list. Unlike in 2016, he could run on his track record.

Still, given that the Supreme Court has historically been a winning issue for Republicans and that 87‐​year‐​old Justice Ruth Bader Ginsburg has continuing health concerns—and Justice Stephen Breyer is 82—the president said in June that he’d be issuing a new list. Joe Biden, meanwhile, has been unwilling to discuss the Court despite, or perhaps because of, his long involvement on the issue as chairman of the Senate Judiciary Committee. Judges barely came up during the Democratic convention, just as Hillary Clinton hardly mentioned Merrick Garland in 2016.

So when President Trump finally announced the 20 additions to his list last week, it was mainly to force the Supreme Court issue even more into the campaign mix, pressuring Biden to be more specific about the judges he’d appoint beyond references to “a living document” and black women. At the same time, given concerns that Gorsuch and Kavanaugh, who have pushed back on the excesses of administrative agencies, might not be strong enough on cultural issues, the new names nod to social conservatives and populists. “The 20 additions I am announcing today would be jurists in the mold of Justices Antonin Scalia, Clarence Thomas, and Samuel Alito,” Trump said in his announcement, notably omitting not only Chief Justice John Roberts but also his own two nominees.

Trump is also aiming to appeal to women in suburbs—where his support has been waning—and racial minorities—among whom he has been doing better than past Republican candidates. That’s why, for example, Judge Sarah Pitlyk, a former Kavanaugh clerk with a socially conservative background, was picked over Judge Justin Walker, another former Kavanaugh clerk who just became the youngest member of the administrative‐​law‐​heavy D.C. Circuit. It’s why Fifth Circuit Judge Kyle Duncan, who made a name for himself defending religious liberty, was picked over his colleague Andy Oldham, who’s become a Federalist Society superstar with his erudite writings on government structure. It’s why Fourth Circuit Judge Allison Jones Rushing was picked over her colleague Jay Richardson, who’s been issuing fiery dissents from that court’s left‐​leaning majority, and why Cuban‐​American Eleventh Circuit Judge Barbara Lagoa was picked over her highly touted colleague Lisa Branch.

Several current and former members of the administration are also on the list, presumably to thank them for their loyal service. That’s also why three senators were added, including two—Ted Cruz and Josh Hawley—who have been vocal players on the judiciary committee and one—Tom Cotton—who has been a key supporter generally. Another nod to Hawley, who’s questioned the efficacy of a conservative legal movement that fails to produce results for the voters who empower it, is the omission of respected D.C. Circuit Judge Neomi Rao, whose confirmation Hawley tried to stop. Since her confirmation, Rao has been writing pro‐​administration opinions in high‐​profile controversies ranging from the subpoenas for Trump’s tax returns to the prosecution of former national security adviser Michael Flynn.

But few of the new names will join the high‐​powered old ones in being seriously considered for the next opening. Fifth Circuit Judge James Ho, a Taiwanese immigrant, is the most notable in that category, at least for the Breyer seat. And with Rao excluded, it’s now almost certain that, if he gets the opportunity, Trump will tap Seventh Circuit Judge Amy Coney Barrett, from the earlier list, for the Ginsburg seat.

In short, with his new list, Trump puts pressure on Biden, shores up his own ideological base and makes regional and demographic appeals. It’s a shrewd move that, whatever its jurisprudential merits, may well pay off politically as it did four years ago.