Jurisprudence

Trump’s Supreme Court Wishlist Won’t Work This Time

The president released 20 new names of potential nominees. No one batted an eye.

Pro-life activists participate in a demonstration in front of the U.S. Supreme Court June 29, 2020 in Washington, DC. The Supreme Court has ruled today, in a 5-4 decision, a Louisiana law that required abortion doctors need admitting privileges to nearby hospitals unconstitutional.  (Photo by Alex Wong/Getty Images)
Alex Wong/Getty Images

In May 2016, Donald Trump made an unprecedented decision to reveal the individuals he would consider for the Supreme Court if elected. That shortlist might have won him that election. Exit polling and longer-term studies showed that a substantial number of GOP voters turned out for Trump because of the primacy of the Supreme Court in their concerns, including some who were repulsed by him but enticed by the dream of finally, after decades of effort and funding, capturing the federal judiciary for a generation. Trump, who campaigned among religious voters by telling them they had no other option, rewarded these voters when he became president, by ramming through not just two conservative Supreme Court justices but more than 200 lower court federal judges in record time. We are now blessed with judges who degrade transgender people, defend police brutality, defy abortion precedent, flout judicial ethics, run interference for their benefactor, and write Breitbart-style screeds about the evils of gun safety laws. Some of these new judges had never tried a case. Some of them haven’t even been lawyers for a decade.

On Wednesday, Trump tried to revive the practical magic of that fateful 2016 announcement. It fell flat. In a bored and listless tone, the president rattled off 20 additions to the original Supreme Court shortlist, for a grand total of 45 contestants for a vacancy that does not yet exist. New picks include Sens. Ted Cruz, Tom Cotton, and Josh Hawley, alongside lower court Trump judges and a few administration officials who’ve been extra obsequious to the boss. He sounded most enthusiastic when claiming that Joe Biden’s “radical justices” would “erase national borders, cripple police departments, and grant new protections to anarchists, rioters, violent criminals, and terrorists.” But even this perfunctory recitation of American Carnage: SCOTUS Edition cannot gin up the same kind of energy the first list imparted to his campaign. The 20 new names won’t sway anyone this time, not just because they aren’t very interesting, but because there is no one left to convince: Everyone who is planning to vote for Trump because of the Supreme Court made up their minds long ago.

There are no more Trump-skeptic conservatives to pick off because seizing the judiciary for the far right is one promise that the president has actually kept. In 2016, it was still an open question whether Trump would appoint a Federalist Society golden boy (as his supporters hoped) or Miss Kentucky (as they feared). On the campaign trail, he sounded like a wild card, even musing about appointing his own sister, a moderate federal appeals court judge. (His sister will be unlikely to get the nod this time.) But to the Republican establishment, a moderate SCOTUS nominee was even more horrifying than the prospect of an unqualified one. Trump fell in line after then–campaign counsel Don McGahn outsourced the judge issue to Leonard Leo, then-head of the Federalist Society. More so than usual, the Supreme Court was on the ballot: The next president would select Justice Antonin Scalia’s successor, since the Senate Republicans refused to let President Barack Obama fill the seat. Leo helped Trump assure anxious voters that he would replace Scalia with another arch-conservative. That was what “the list” served to secure.

The stakes are just as high today. Justice Ruth Bader Ginsburg is fighting her fifth bout of cancer at age 87; no one seriously argues that she will stay on for four more years if Trump wins reelection. SCOTUS is on the ballot once again—but this time, everybody knows Trump would appoint extremely conservative justices while Joe Biden would appoint moderately liberal ones. In fact, court watchers almost universally agree that Trump would replace Ginsburg with Judge Amy Coney Barrett, a committed foe of reproductive rights. But Barrett was already on the original list; indeed, Trump felt compelled to give her a shoutout on Wednesday, in case you’d forgotten who is waiting by the cemetery gates. At most, the new additions remind voters that, if Trump gets to appoint “one, two, three, and even four Supreme Court justices” (as he’s promising) in his second term, there are many, many more Amy Coney Barretts clustered just offstage. And given the backbench of hacks Trump has built up in the lower courts, it’s hard to believe anyone with the wherewithal to vote really needed that reminder.

Because the new list serves no meaningful political purpose, then, the best way to think about it is as a kind of recurring report card for jurists interested in their chances at someday being called up for the big show. Minor league ballplayers get scouting reports; off-off-Broadway actors get their good reviews. But how is a young, never-set-foot-in-a-courtroom former blogger turned appeals court judge to know whether their odds of promotion this season are 5-to-1, 250-to-1, or 10,000-to-1 without some kind of official notification?

Or perhaps the list serves as a “do better, slackers” warning from the White House to those who did not make the list, so midlevel aspiring justices can start drafting the elaborate dissenting opinions or calls for rehearing en banc that will signal that they are ready and willing to overturn Roe v. Wade, Brown v. Board of Education, Obergefell v. Hodges, or whatever future E. Jean Carroll lawsuit the administration needs them to work on. The list tells any ambitious young judge or politician or Justice Department employee (we see you, Steven Engel!) where precisely they stand with the president and his Federalist Society allies. And the conspicuous absence of federal appeals court Judge Neomi Rao, the staunchest judicial defender of Trump’s rank criminality, suggests she’d better pull it together and write something abhorrent about abortion right quick if she wants to make the next round.

We think these explanations have some merit, but they probably also give the White House too much credit for tactical thinking in any construction of the facts. The list is not one piece of an intricate political strategy to win over voters; the list is all they have. A pandemic is killing hundreds of thousands of people. Trump knew it would and did nothing. The economy is cratering. The West Coast is on fire. All Trump has to offer is the promise that he will appoint a reliable conservative to overturn Roe v. Wade and the recycled argument that the Supreme Court is all that matters.

Trump, who seated two justices yet watched the court refuse to overturn Roe again this year, is going back to that dry, dusty well. The list is for all the religious voters who watched Trump install 200-plus jurists, and still fail to deliver the end of abortion and LGBTQ rights. And that’s why the list comes with a warning label about Biden’s justices, who, Trump insists, will “give unelected bureaucrats that power to destroy millions of American jobs. They will remove the words ‘under God’ from the Pledge of Allegiance.”

Trump can’t lift himself out of an electoral doom spiral by lying to his supporters about antifas in robes and assuring them that he’ll keep putting their idols on the bench. He put two of their idols up in two years and still abortion is legal. The president wants to replay his greatest hits, but Wednesday’s announcement sounded like a cover band that only knows one song.