President Donald Trump on Wednesday unveiled a new list of potential Supreme Court nominees, a bluntly political move designed to keep conservatives from abandoning him, just as he used his first list in 2016 to entice conservatives to join him.
Speaking at the White House, Trump warned in hyperbolic terms of “radical justices” who would silence political speech rights; favor anarchists and rioters; and abolish religious liberties, including by obliterating “under God” from the Pledge of Allegiance.
“Our cherished rights are at risk including the right to life and our great Second Amendment,” said Trump, who opposes abortion rights and gun regulations.
Trump has predicted that the next president could fill several seats on the nine-member Supreme Court: “Maybe even five,” he said at a recent New Hampshire appearance, adding, “You better vote for me.”
But his exaggerated claims and the revised list reflect more than the usual campaign crowing. They are a reminder of Trump’s broader attempt to use and control the federal judiciary. His actions undermine the traditional neutrality of the bench.
Trump has adopted an us-versus-them approach to judges, a theme familiar to much of his presidency. He expects fidelity from his appointees, and he assumes Democratically appointed judges will automatically rule against him.
He reinforces that view with regular tweets, and as he accelerates his criticism of judges, he has generated more conflict and suspicions among judges themselves.
“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives,” Trump said on Twitter in June as the Supreme Court was completing its recent session. “We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”
One of Trump’s new candidates for the court responded on Wednesday with the same crusader spirit. “It’s time for Roe v. Wade to go,” Sen. Tom Cotton of Arkansas wrote on Twitter, referring to the 1973 milestone that made abortion legal nationwide.
Trump’s new list includes myriad conservatives, from low-profile US appeals court judges to prominent establishment lawyers to political flamethrowers such as Cotton and fellow GOP Sens. Ted Cruz of Texas and Josh Hawley of Missouri.
Hawley posted a tweet saying he was not interested in becoming a justice and wanted to remain a senator. “I look forward to confirming constitutional conservatives,” added Hawley, who was once a law clerk to Chief Justice John Roberts.
Roberts and some lower court judges have lamented the lens of politics through which many people, the President included, view today’s judiciary. In November 2018, Roberts rebuked Trump for referring to a judge who ruled against the administration as an “Obama judge.”
But to Trump, he is merely articulating the reality. (He retorted as much to Roberts in the 2018 incident.)
Yet, the President may be doing more: he may be generating a self-fulfilling prophecy. He seems determined to produce a Republican-versus-Democrat mindset throughout the third branch, or maybe Trump versus everyone else.
“Do you get the impression that the Supreme Court doesn’t like me?” he said in a June tweet. And in July, when he saw mixed decisions on his effort to block subpoenas on his tax and other financial records sought: “Courts in the past have given ‘broad deference’. BUT NOT ME!”
His assertions have heightened tensions among judges, as liberal judges see a President constantly challenging the rule of law and conservatives see a presidency continually under attack, including from the judiciary.
Trump on Wednesday criticized former Vice President Joe Biden for not issuing a similar list of possible Supreme Court nominees. Biden earlier this year pledged to appoint the first African American woman to the court.
Trump asserted on Wednesday that any Biden nominees would be “so extremely far left that they could never withstand public scrutiny or receive acceptance.”
Importance of SCOTUS in the election
In past elections, Republican voters have appeared more concerned than Democrats about the direction the Supreme Court, perhaps because the high court was long regarded as a bastion of liberalism on abortion rights and other social policy dilemmas.
But Democratic voters may have greater fears for the future of the bench, especially in light of the fact that the two eldest justices – 87-year-old Ruth Bader Ginsburg and 82-year-old Stephen Breyer – are liberals.
A recent CNN poll found that more Biden supporters (47%) called Supreme Court nominations “extremely important” than did Trump supporters (32%).
More broadly, the CNN poll found that the Supreme Court was among top issues for all those surveyed, falling just after the economy, health care and foreign policy. Of the people surveyed, 69% rated the Supreme Court as an issue “very important” or “extremely important.”
The Supreme Court was arguably more significant to voters in 2016 because there was a vacancy, caused by the February 13 death of Justice Antonin Scalia. (Senate Majority Leader Mitch McConnell blocked all Senate action on President Barack Obama’s nominee, US appeals court judge Merrick Garland.)
Scalia was a crucial member of the five-justice right-wing, and if Obama or a Democratic successor had been able to appoint Scalia’s replacement, it would have tipped the Supreme Court over to a liberal majority for the first time in decades.
Trump campaigned on appointing justices in the mold of Scalia and in May 2016 took the unprecedented step for any contemporary presidential candidate of revealing a list of 11 possible nominees for the court. Trump added to the list the following September and then again in 2017.
The May 2016 move reassured many establishment Republicans who had been warily watching the unconventional candidate Trump, a former New York real estate developer and reality TV celebrity.
Trump’s lists, shaped by the Federalist Society and Heritage Foundation, were composed mainly of experienced conservatives sitting on US appeals courts and state supreme courts – jurists who might have made any traditional Republican presidential candidate’s list.
And Trump would boast that the Supreme Court was one of the leading reasons for his 2016 victory.
Trump has since appointed Neil Gorsuch and Brett Kavanaugh, both former US appeals court judges. They have generally sided with the Trump administration, as have the three other Republican appointees on the court currently split between five conservatives and four liberals.
Trump vs the judiciary
Trump referred to that close margin on the Roberts court to point up the need for more conservatives: “In the recent past, many of our most treasured freedoms including religious liberty, free speech and right to keep and bear arms have been saved by a single vote on the United States Supreme Court.”
While his attention on the court and expanded list will likely appeal to his base, Trump’s rhetoric also reinforces his politicization of the court and recalls his many attacks on individual jurists.
Coincidentally, it was in May 2016, just after he revealed his first list, that Trump derided a federal judge in San Diego who was hearing fraud claims against Trump University as a “Mexican judge.”
Trump’s more routine criticisms, such as against an “Obama judge,” are political.
Two weeks ago, US Appeals Court Judge Thomas Griffith, a Republican appointee who was about to step down from the DC Circuit, complained about the politicization of the judiciary.
“In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle,” he wrote. “The party affiliation of the President who appoints a judge becomes an explanation for the judge’s real reason for the disposition, and the legal reasoning employed is seen as a cover for the exercise of raw political power.”
Trump, of course, engages in this pattern from his highly visible perch.
As the President finished reading aloud his 20 new names on Wednesday, he struck a campaign chord, declaring: “Together we will defend our righteous heritage and preserve our magnificent American way of life.”
CNN’s Jennifer Agiesta contributed to this report.