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Trump Is Waging a One-Sided Judicial War Against Democrats

His latest Supreme Court shortlist includes Senate allies Ted Cruz and Tom Cotton, and seems designed to goad Biden into a response.

Mark Wilson/Getty Images

The Supreme Court’s most recent term ended without any unexpected retirements leaving a seat to be filled, but that hasn’t prevented President Donald Trump from sending some election-year signals about his intentions should one occur. The White House released a new shortlist of potential Supreme Court nominees on Wednesday, once again pledging to appoint only conservative jurists on the nation’s highest court.

Wednesday’s move was an undisguised effort to refocus the presidential race on terrain where Trump feels more confident about his record. “Apart from matters of war and peace, the nomination of a Supreme Court justice is the most important decision an American president can make,” Trump said in a speech from the White House. “For this reason, candidates for president owe the American people a specific list of individuals they consider for the United States Supreme Court.”

The shortlist marks the first high-profile injection of Supreme Court politics into the 2020 campaign. While the 2016 race effectively cemented a conservative majority on the court for at least a generation, this year’s election will likely determine just how aggressively the court’s Republican-appointed justices will be able to move the American legal system further to the right. As of right now, only one presidential campaign—and one political party—is making that a central argument for its election.

Among the 20 new names Trump announced were three hard-right senators: Tom Cotton, Ted Cruz, and Josh Hawley. (Moments after Trump read Cotton’s name, the senator tweeted, “It’s time for Roe v. Wade to go.”) The rest included two former solicitors general, Kentucky Attorney General Daniel Cameron, at least two current Trump administration officials, and more than a dozen past Trump judicial nominees to the lower courts. One curious absence was Neomi Rao, one of Trump’s D.C. Circuit appointments who has delivered a series of high-profile rulings in his favor over the past 18 months.

Trump also used the opportunity to warn of a “growing radical left movement” that “rejects the principle of equal treatment under law,” insinuating that it could attain a majority on the Supreme Court if he lost in November. “Radical justices will erase the Second Amendment, silence political speech, and require taxpayers to fund extreme late-term abortion. They will give unelected bureaucrats the power to destroy millions of American jobs. They will remove the words ‘under God’ from the Pledge of Allegiance. They will unilaterally declare the death penalty unconstitutional, even for the most depraved mass murderers. They will erase national borders, cripple police departments, and grant new protections to anarchists, rioters, violent criminals, and terrorists.” To that end, he challenged Biden to release his own shortlist of Supreme Court nominees and claimed the Democratic nominee wouldn’t do so “perhaps because he knows the names are so extremely far-left.”

There are no indications that the Biden campaign will release a Supreme Court shortlist any time soon. Biden previously pledged to appoint the first black woman justice to the high court if given the opportunity. Though he suggested his campaign had a shortlist in mind of prospective appointees in June, he declined to release any names. “I am not going to release that until we go further down the line in vetting them,” he told reporters in June.

The gap between the two campaigns reflects a deeper asymmetry in American judicial politics. In recent years, American liberals have started to assemble their own dedicated infrastructure for judicial battles, though they still lag behind conservatives in relative influence and funding. Demand Justice, one of the leading groups in the surge, released a generalized Democratic shortlist last October with 32 names on it. Among the luminaries from that list are The New Jim Crow author Michelle Alexander, NAACP Legal Defense and Education Fund President Sherrilyn Ifill, and Supreme Court of California Justice Leondra Kruger. The Democratic nominee has given no indication if he’s favorably inclined toward any of these prospects.

While past presidents have made Supreme Court appointments with electoral goals in mind, none have been as openly transactional about them as Trump. He released two shortlists during the presidential campaign in an undisguised effort to convince conservative voters and elites that he would not abandon the movement’s half-century mission of pulling the high court further to the right. This show of fealty successfully persuaded Texas Senator Ted Cruz, who had famously snubbed Trump at the 2016 convention only weeks earlier, to reverse course and openly support him for president. Justice Neil Gorsuch was featured on the second 2016 list; Justice Brett Kavanaugh was added in a 2017 update.

Trump’s move comes amid high levels of public interest in the court. In a Pew survey last month, 64 percent of registered voters said Supreme Court appointments were “very important” to their vote. Only the economy and health care ranked higher among voter interests of those surveyed. And while Biden and Trump supporters split on the importance of issues like crime, immigration, and the coronavirus pandemic, the two sides were largely in sync when it came to the Supreme Court’s future. Among Biden supporters, 66 percent ranked it as “very important,” while 61 percent of Trump supporters said the same.

Those numbers mirror what voters told pollsters ahead of the 2016 election, which took place against the backdrop of a Supreme Court vacancy that opened after Antonin Scalia’s death that February. The prospect that Hillary Clinton would appoint Scalia’s replacement and almost certainly create the first liberal majority on the court since the 1960s galvanized conservatives who might have otherwise hesitated to vote for Trump. In exit polls, 26 percent of Trump voters said the Supreme Court was the “most important” factor in their vote, compared to just 19 percent of Clinton voters.

It’s no wonder why Trump highlights his efforts to reshape the federal judiciary at nearly every opportunity. “By the end of my first term, we will have approved more than 300 federal judges, including two great, new Supreme Court justices,” Trump claimed while accepting the GOP nomination in August, exaggerating the number of judicial confirmations during his tenure by roughly 100 judges. “We will appoint prosecutors, judges, justices who believe in enforcing the law, not enforcing their own political agenda,” he later pledged.

While Trump’s gambit reflects the partisan asymmetry in federal judicial politics, it makes little strategic sense. Trump’s original shortlists came in response to legitimate conservative fears about his views toward the judiciary. Neither Democratic officials nor rank-and-file voters, by comparison, seem particularly worried that Joe Biden, a former Senate Judiciary Committee chair who helped lead Senate opposition to Robert Bork in 1987, will appoint judges who are hostile to their values.

If anything, Wednesday’s move is more likely to give Biden an opportunity to criticize Trump for considering openly extreme figures like Cotton and Cruz for the nation’s highest court. That would be a familiar role for the former vice president, and one that would likely resonate with the Democratic base. “Look, I told Barack if you really, really want to remake the Supreme Court, nominate Cruz,” Biden joked at the Gridiron Dinner in 2016. “Before you know it, you’ll have eight vacancies.”