Trump Needs Another Judges List

National Review Online

Tuesday, May 14, 2024

 

Two of the unprecedented things Donald Trump did in 2016 were to release a list of potential Supreme Court picks and to win the presidency. The first of those was essential to the second. If he wants to win and govern successfully, he should do it again.

 

In 2016, the list served a particular purpose: Because Trump had never served in government and had little record of engagement with political ideas or activism, it helped fill in the blanks for voters. The list offered a concrete sense of what sort of jurists Trump would elevate on the federal bench. It was a decided improvement over his first instinct, which had been to tout his liberal sister as a potential justice. The names were distinguished and notably faithful to the text and original meaning of the Constitution. That, along with the selection of Mike Pence as his running mate, reassured many skeptical conservatives that a vote for Trump would ensure a worthy successor to the Supreme Court seat vacated by Antonin Scalia.

 

While the list was a break with norms from a more reticent age, it was a healthy one for democratic transparency in light of the outsized role the Court plays today, both in presidential elections and in deciding what the elected branches will be permitted to do. It is ultimately the voters who are responsible for preserving our Constitution, and they deserve to know what sort of hands they will be leaving it in. Offering a representative list of jurists is surely superior to what Joe Biden did in 2020, which was to promise to limit his choices in selecting the next justice to black women — offering voters only the race and gender of his next justice but nothing from which to evaluate considerations such as judicial philosophy, temperament, or qualifications.

 

Trump’s list paid off. Exit polls showed that voters who rated the Court as a top priority provided the margin of Trump’s surprise victory. In office, Trump kept his end of the bargain. Trump’s judicial nominations (including his three nominations to the Supreme Court) were characterized by a combination of rigor, consistency, and competence that was too often missing from the more chaotic quarters of his administration. With the outside input of constitutionalist legal activists and smooth cooperation with Mitch McConnell and Senate Judiciary chairmen Lindsey Graham and Chuck Grassley, Trump did much to remake the judiciary for the better. This was coalition politics the way it is supposed to work.

 

The judiciary has been a rare area of agreement that unites all the disparate factions of Republicans, both in political and policy terms. The judicial confirmation wars and blowback over Democratic talk of Court-packing was helpful to Republicans in key Senate races in 2018 and 2020. The new Supreme Court majority and the many Trump appointees to the lower federal courts have delivered numerous rulings cheered by traditional legal conservatives and MAGA activists alike. One consequence was the Holy Grail of the conservative legal movement: the 2022 overturning of Roe v. Wade.

 

Yet, throughout the 2024 primaries, Trump and his campaign were oddly quiet about the judiciary. Trump seemed content to rest on his laurels and his record, talking about delivering the end of Roe but giving little assurance that he would pick up where he left off if returned to office. Listening to quotes from Trump allies and anonymous leaks to the press, there are once again reasons to be worried that Trump might go in a different direction. There was talk that Trump was dissatisfied that his judicial nominees were insufficiently loyal to his personal causes (such as his stolen-election theories and his efforts to avoid prosecution) and insufficiently aggressive in delivering culturally conservative outcomes. There has been open jockeying for position by MAGA and “New Right” activists and scholars seeking to displace the more traditional originalists who were involved in the first Trump term’s selection process.

 

It is clear that there has been a changing of the guard among the personnel in Trump’s orbit, and that Trump won’t be listening to the same people for advice. By 2025, McConnell will no longer be leading the Senate Republican caucus. But how concerned should legal conservatives be about whether a second Trump term would walk away from perhaps the greatest success story of the first term? There is much speculation and little evidence. Neither Trump himself nor his campaign has done much to clear the air. They have expected voters to take things on faith. That is needless and self-defeating.

 

In mid-March, Trump told Alex Swoyer and Charles Hurt of the Washington Times, “I’m going to be putting together a list of judges — great judges — a list of about 20. I think it’s important to reveal who your Supreme Court justices will be. There are people who say the list helped me win the election last time. Frankly, I think Biden should be doing the same thing.” That was an encouraging sign, but as of now, there has been no further movement in public on a list.

 

It would be good and healthy if Trump follows through on the promise of a new list. If the list once again includes respected legal conservatives, that could be helpful to Trump’s campaign with precisely the sorts of voters who came away from the aftermath of the 2020 election with deep reservations about Trump’s compatibility with our constitutional order. If it does not, people will know where Trump stands now.

 

Politically, it may be tempting for the Trump campaign to look at the former president’s lead in national and swing-state polls and get complacent. That would be a mistake. Elections in November aren’t decided by polls in May. Trump’s leads are hardly insurmountable, and there are warning signs aplenty (including the continuing primary vote for Nikki Haley) that Joe Biden will have advantages over Trump in turning out potential supporters and persuading crucial suburbanites. That’s not just a concern that affects Trump; it has knock-on effects down the ticket for Republicans running for the Senate and other offices. They, too, should encourage Trump to stay the course on judges, and to do so publicly.