Conservative insiders knew plenty about the controversies but little about the substance of the candidate barreling his way toward the 2016 presidential nomination.
His donations to Democrats were archived. The contradictory quotes, on everything from abortion to taxes, were fodder for attacks. The friendships with both the Clintons were well-documented. Little was known about his theories on jurisprudence.
There was an empty seat on the Supreme Court, and Donald Trump had made conservatives nervous when he half-jokingly floated the idea of nominating his sister. “There was a time I thought he would pick Judge Judy,” Sen. Lindsey Graham later said of the spring of 2016. “I swear to God.”
But the celebrity president did not choose his sister, who formerly sat on the Third Circuit of the U.S. Court of Appeals, and he didn’t go with costumed actors from television courtrooms. He nominated federal jurists with Catholic school pedigrees and law degrees from Harvard and Yale and the endorsement of the Heritage Foundation and the Federalist Society — as he had promised.
The promise came in the form of a list of potential picks released in May 2016, a sort of extended political warranty for skeptical conservatives. And it worked. Trump won the nomination and then, during the general election, one of every five voters told CNN in an exit poll that they had cast their vote specifically because of the Supreme Court. Of those voters, 56% pulled the lever for Trump.
“It was unprecedented,” explained John Malcolm, the scholar at the Heritage Foundation who put together the first draft of justices that Trump later adopted. None of the other Republicans challenging Trump for the nomination did the same, and neither has any other major presidential candidate in U.S. history. Candidates normally offer boilerplate background on potential picks. Trump named names.
Many of the candidates looking back, Malcolm suggested, have to be thinking, “’Why didn’t I do that?’”
Sen. Ted Cruz was one of those challengers, and he told RCP that he personally urged Trump to put out a list of potential nominees. Should this set a precedent for all future Republican candidates? “Not necessarily,” Cruz said. The last presidential election was a unique moment in history. Releasing the draft list, the Texas Republican explained, “was an integral part to earning support.” In fact, it’s the reason he backed Trump even after a bitter primary battle.
“There’s no doubt that the Supreme Court was a major issue in the 2016 election,” he explained, “and that for millions of voters, myself included, it was the No. 1 reason they voted for Donald Trump over Hillary Clinton.”
Cruz has a better understanding of the court than most. He clerked there under Justice William Rehnquist and later argued before it as the solicitor general of Texas. His conclusion? “A single seat on the Supreme Court can change history.” Trump agrees and clearly hopes that putting out another list can change the history of his own presidency, namely by helping him win a second term.
“I’ll be soon announcing a new list of exceptional candidates for the United States Supreme Court,” he told a crowd in Tulsa, Okla. And then perhaps to ease any lingering concerns, he added that he would “choose only from that list.” With that campaign promise, Trump signaled the opening day of “Fantasy SCOTUS.”
It is like fantasy baseball or football — but for conservative and libertarian legal scholars. Instead of shortstops and quarterbacks, many are putting together rosters of the judges they hope the administration will later draft. It isn’t just for fun. The Heritage Foundation and Federalist Society hold considerable sway. A good scouting report from those organizations is critical then.
A potential nominee ought to have a sterling resume, a conservative track record, and, for bonus points, membership in the Federalist Society. A nominee also needs to be relatively young.
Neil Gorsuch was 49 years old when he took the oath of office. Brett Kavanaugh, 53. Middle age in other professions, that’s relatively youthful for a Supreme Court justice and incredibly consequential. Life tenure allows a younger justice to influence the direction of the judiciary for decades. Deepen the bench with one or two more conservative justices, and the court could change for at least a generation.
“If you have six or seven committed textualists or originalists, you are more likely to carry the day, at least in terms of a commitment to that philosophy and having it faithfully applied the cases that the court considers,” Malcolm added. He told RCP that he hasn’t put together a list just yet. He has, however, been advising the administration on a number of picks during Trump’s first term.
The promise of a second list comes the same week that Trump turns the corner on a total of 200 federal judges nominated and confirmed by the Senate. When his White House starts scouting, it will pick from that lineup, explained Carrie Severino, president of the conservative Judicial Crisis Network.
“The big shift,” she told RCP, “is that you’re going to start seeing some of those outstanding appellate picks also now being part of the consideration for the Supreme Court.” No more holdovers from either of the Bush administrations, she added. These will be Trump justices through-and-through.
Court watchers and conservatives will have the summer to debate who might be best and to speculate about who will and who ought to make the cut. Trump World will do everything to hype the election-year sideshow without tipping its hand and ruining any big reveals.
While names aren’t public just yet, according to campaign senior legal adviser Jenna Ellis, the goal is straightforward: “President Trump has expressed very clearly his concern that the Supreme Court and entire federal bench protects our Constitution and our individual rights, rather than using their positions to legislate policy or rule according to political preferences.”
Will the president outsource the process like last time? Not exactly. “I anticipate he will receive input from sources other than the Federalist Society,” Ellis told RCP, “who are also interested in nominating conservative judges.”
There are new faces and therefore new variables in the draft room. Jeff Sessions has been replaced by William Barr as attorney general, and former White House Counsel Don McGahn is gone, replaced by Pat Cipollone. An emphasis on administrative law influenced how McGahn vetted justices last time around. Barr and Cipollone now seem more intent on religious liberty, a factor that many expect may come to define the final decision.
Regardless of who gets a call from the White House, the campaign will trumpet the list to gin up support among the president’s base. Trump has made remaking the judiciary in his image a central plank in his reelection and never passes on an opportunity to plug his work. But it is different this time around, even if the White House insists that the second draft class will be as good, if not better, than the first.
The empty seat of the late Antonin Scalia helped define the last election. The presidency wasn’t just up for grabs. It was also the balance of the Supreme Court. The same can be said now but with less urgency ahead of 2020. For instance, Ruth Bader Ginsburg, the beloved octogenarian liberal justice known in pop culture as RBG, is not looking to retire. Along with 81-year-old Justice Stephen Breyer, though, the unyielding reality of time could still force her hand.
This means that the next president could nominate one or two justices, or none. It’s still a consequential consideration but not a guarantee. It might not be a defining one, either. There are other issues clouding the minds of voters, namely the pandemic, an economy in recession, and ongoing racial tensions. Even with less immediate urgency, the Trump campaign still plans to use his list as a cudgel.
“Biden’s nominees would be extreme leftists and activists,” Ellis said. “The Trump campaign looks forward to Biden’s response whether he will release his own list or his excuses why he won’t.”
But the former vice president has been cautioned by allies not to take the bait. His campaign declined to offer any additional details when asked by RCP other than to reiterate Biden’s pledge to nominate an African American woman to the court. Trump, meanwhile, plans to show his list again.