Last fall, during the crowded Democratic primary, liberal judicial advocacy groups were pressing the entire field of 2020 candidates to lay out the type of judges they would appoint to the Supreme Court and the federal judiciary as a whole.
They didn’t get very far. For instance, Joe Biden only pledged not to pack the Supreme Court and to make support for abortion rights a litmus test for his court picks; South Bend, Ind., Mayor Pete Buttigieg embraced the idea of expanding the number of high court justices from nine to 15; and former Housing and Urban Development Secretary Julian Castro offered up the idea of term limits instead of lifetime judgeships.
It was hardly the sweeping commitments on judicial nominations that progressive groups such as Demand Justice had sought.
After Biden won the nomination, the makeup of the Supreme Court largely died down as a campaign issue — that is, until President Trump revitalized it Wednesday by announcing 20 additions to the existing list of names from which he pledged he would choose his high court nominees back in 2016.
But now that the presidential race is tightening in its final two months, especially in the critical battleground states, left-leaning groups aren’t pushing the Democratic nominee for judicial transparency, choosing instead to train their fire on Trump and his newly expanded shortlist.
Four years ago, Trump took the unusual step of pledging to choose his Supreme Court nominees from a roster vetted and compiled by Leonard Leo, an outside adviser to the campaign on the courts while he was on leave from the Federalist Society. The move assured Republicans wary of how Trump would govern that a vote for him would help tilt the court to the right. The move was risky and unprecedented, but 2016 Election Day exit polls showed it paid off, with one out of every five voters saying that the makeup of the Supreme Court was their top issue. Trump ended up winning 57% of those voters.
The president’s expanded list includes three sitting GOP senators – Tom Cotton of Arkansas, Ted Cruz of Texas and Josh Hawley of Missouri — as well as several lawyers who have worked in the current administration and for previous Republican presidents, including former Trump Solicitor General Noel Francisco and fellow former Solicitor General Paul Clement, who worked under President George W. Bush.
The president also underscored his continued support for two judges on his previous list: Amy Coney Barrett of the Seventh Circuit Court of Appeals and Thomas Hardiman of the Third Circuit Court of Appeals. Both were considered to fill Justice Anthony Kennedy’s seat following his retirement in 2018 and have even stronger support from conservative advocacy groups now.
Overall, Trump has appointed 205 federal judges throughout his presidency, which his supporters often cite as a major achievement of his term in office.
During a news cycle consumed by inconsistencies in Trump’s coronavirus messaging as laid out in Bob Woodward’s latest book, the president was eager to turn the page and inject the issue of judicial appointments into the final reelection sprint. During remarks at the White House, he called Supreme Court appointments “the most important decision an American president can make.” If given a second term, Trump said he could possibly be called upon to name up to four justices.
“For this reason, candidates for president owe the American people a specific lists of individuals they consider for the United States Supreme Court,” he said.
There’s no current Supreme Court vacancy, but Justice Ruth Bader Ginsburg, considered the court’s liberal core, is 87 and has experienced recent health challenges. Justin Stephen Breyer is 82, while conservative Justice Clarence Thomas, the high court’s longest serving member, is 72.
Biden didn’t immediately take the bait, opting instead to stay on message by hitting Trump over his early downplaying of the coronavirus in the first weeks of 2020 while telling Woodward that he was worried about its lethality.
“Donald Trump knew,” Biden said in a tweet. “He lied to us for months. And while a deadly disease ripped through our nation, he failed to do his job — on purpose.” Biden deemed it a “life or death betrayal of the American people.”
On the issue of judicial appointments and whether he would release his own shortlist, Biden and his campaign were mum. A campaign spokesman did not respond to a RealClearPolitics’ request for comment.
Liberal advocacy groups, meanwhile, did not use the occasion to press Biden to disclose more about the types of judges he would name. Demand Justice last fall released a list of 32 possible nominees to the high court as a way of prodding the Democratic candidates to start making commitments.
“Democrats running for president should tell primary voters who they might appoint to the Supreme Court,” the group’s executive director, Brian Fallon, tweeted at the time. “And they should be bold enough to pick someone who’s worked to defend civil rights, workers’ rights or reproductive rights.”
Republican attorneys general on Wednesday applauded Trump’s announcement and accused Biden of hiding on the issue.
“Unlike President Trump, Joe Biden has been silent on the type of judges he would appoint to the federal circuit and appeals courts, as well as the United States Supreme Court,” Louisiana Attorney General Jeff Landry said in a statement. “…Could it be that his list includes radical activists who have failed at achieving their liberal agenda through Congress, and are now planning to do so through the courts?”
After Trump announced the additions on Wednesday, Fallon didn’t call for the same from Biden. Instead, Demand Justice likened all of the judges on the list to the newest Supreme Court justice. “Donald Trump’s Supreme Court shortlist: More Far-Right Justices like Brett Kavanaugh, more votes to end health care for millions,” the group tweeted.
Fallon specifically criticized the inclusion of well-known conservative GOP senators on the list, accusing Trump of doubling-down on extreme candidates. “By including [the] likes of Cruz and Hawley on the list, Trump is putting it in neon lights what another Trump justice will mean,” he tweeted.
Last year, the Alliance for Justice, the liberal group that spearheaded the successful fight to derail Supreme Court nominee Robert Bork’s confirmation in 1987 — which led to tougher Senate confirmation fights for many justices who followed — began its own judicial appointments push. The group launched Building the Bench, an effort to identify progressive judges it and other liberal groups believe are best suited to fill likely vacancies.
Democrats are anticipating scores of lower court openings — seats held by senior judges appointed by Presidents Obama, Clinton and Carter who are waiting out the Trump administration to retire if a Democrat wins the Oval Office.
But unlike Trump’s transparent 2016 move, the 40-year-old AFJ has kept its lists of judges secret, and during the Democratic primary, only Sen. Amy Klobuchar was willing to say she would reveal a full slate of potential nominees on the first day of her presidency, though she too refused to name any names beforehand.
AFJ President Nan Aron argued that the new additions are going to do more to turn off rather than win swing voters in the final weeks of the campaign.
“If there’s one thing this president doesn’t lie about, it’s his eagerness to stack the courts with extremists to carry out Republicans’ conservative agenda, overturning access to health care and abortion,” she tweeted. “…This is a last-ditch effort by the president to energize his base. … If Trump is allowed to fill another Supreme Court seat, it would be a disaster for our democracy.”
While Trump’s shortlist worked for him in 2016, Fallon argues the politics are different this time around. Because the ugly Senate battle over Kavanaugh’s confirmation remains a bad memory for many Democratic voters, and concerns over Bader Ginsburg’s health resurfaced this summer, he argued that more Democratic voters are prioritizing the Supreme Court makeup than are Republican voters.
In early August, after Bader Ginsburg disclosed her pancreatic cancer had recurred and spread to her liver, a Morning Consult-Politico poll found that 57% of registered Democrats are saying the courts will play a role in how they vote in November, a nine-point increase since May. Republicans, however, also view the Supreme Court as “very important” with 53% saying it will loom large in their voting decision, a figure that has remained unchanged since the spring.
Conservatives judicial groups have been equally critical of the judicial candidates’ that liberal groups have been pushing over the last year, arguing they will alienate mainstream voters. Demand Justice’s lists includes top Trump foe and legal sparring partner Xavier Becerra, California’s attorney general (and a former congressman), as well as several of the Golden State’s Supreme Court justices, along with freshman Rep. Katie Porter, a California Democrat who was a student of Elizabeth Warren’s at Harvard Law School. It also cited Nicole Berner, general counsel of the Service Employees International Union, and Sherrilyn Ifill of the NAACP’s Legal Defense and Educational Fund.
Conservative media outlets were quick to point out that the list includes U.S. District Judge Carlton Wayne Reeves, who in April compared President Trump’s criticisms of the judiciary to those of segregationist George Wallace.
Another, professor Zephyr Teachout of Fordham University School of Law, called for the abolition of the U.S. Immigration and Customs Enforcement agency during a 2018 campaign for New York attorney general.
Carrie Severino, who runs the conservative Judicial Crisis Network, argued that the roster provides a blueprint to return the Supreme Court to “1960s-style judicial activist” and “left-wing judicial tyranny.” On Wednesday, she applauded Trump for keeping his promise “to prioritize the appointment of judges” and accused Biden of continuing “to duck the issue and hide his list.”
