SALT LAKE CITY — President Donald Trump last week added 20 names to the list of people he would consider appointing to the U.S. Supreme Court if another opening occurs during his tenure.
The additions include Republican Sens. Tom Cotton of Arkansas and Ted Cruz of Texas, one of Trump’s competitors in the 2016 Republican primary. The senators and 18 others join an existing roster of candidates that includes Utah Sen. Mike Lee and his brother, Utah Supreme Court Associate Chief Justice Thomas Lee.
In making the announcement, Trump said he upheld an earlier campaign promise by appointing Neil Gorsuch and Brett Kavanaugh to the U.S. Supreme Court and noted that he has appointed a record number of federal judges, “all of whom will faithfully uphold our Constitution as written.”
He warned that if “radical-left” justices are added to the court, they will “fundamentally transform America without a single vote of Congress” on issues such as gun control, taxpayer funding of late-term abortion, the death penalty, immigration and police funding.
The president won favor with conservatives for releasing a list of 25 names in 2016.
“Trump’s SCOTUS list was a highly effective campaign maneuver, shoring up wobbly support from originalists and social conservatives. Before the election, I was highly skeptical that Trump would adhere to his promises on judges, but he has, and for many of us, these picks are the most important legacy of his first term,” David Harsanyi, a senior writer for National Review, wrote in April.
With the release the president again challenged his Democratic opponent, Joe Biden, to release a list of his own potential picks, placing the nomination of judges firmly in the political spotlight less than eight weeks from the election.
Some conservatives, including syndicated columnist George F. Will, remain opposed to Trump’s reelection, despite his impact on the judiciary and potential nominees.
“Any Republican president would have taken judicial nominees basically from a roster vetted by The Federalist Society,” Will said recently in an interview with the Deseret News, adding that Trump’s “occasional congruence with Republican doctrine” does not outweigh other arguments against his presidency.
A transformative impact
It’s been widely reported that Trump’s list was compiled with the help of Leonard Leo, an attorney who is co-chairman of the board of directors of The Federalist Society and who, like Trump, wants jurists who interpret the Constitution literally.
In a profile of Leo last year, The Washington Post reported that he told a gathering of conservative activists, “No one in this room has probably experienced the kind of transformation that I think we are beginning to see.”
In fact, even if Trump isn’t reelected, legal analysts say his influence will shape the court for decades because federal judges are appointed for life.
“In less than three years as president, President Trump has done nearly as much to shape the courts as President Obama did in eight years,” Ian Millhiser wrote for Vox.
“Trump hasn’t simply given lots of lifetime appointments to lots of lawyers. He’s filled the bench with some of the smartest, and some of the most ideologically reliable, men and women to be found in the conservative movement,” Millhiser wrote, concluding, “There is simply no recent precedent for one president having such a transformative impact on the courts.”
The Wall Street Journal’s editorial board, which said that Trump’s judicial appointments are among his successes, praised much of the judicial talent, but also called the latest list “more overtly political” citing the inclusion of GOP Sens. Josh Hawley, Cruz and Cotton.
“These are ambitious political figures considering potential 2024 Presidential runs. No Senators have been appointed to the Supreme Court in the modern era, and their inclusion seems intended to raise the profile of Mr. Trump’s Senate allies more than give voters an idea of the judges he would choose,” the Wall Street Journal reported.
Cruz on Sunday told Fox News he was not interested in becoming a Supreme Court Justice:
“I don’t,” Cruz responded to a question from host Maria Bartiromo. “It is deeply honoring, it’s humbling to be included in the list … but it’s not the desire of my heart. I want to be in the political fight.”
Sen. Lee remains on the list and was considered previously. As the Deseret News wrote last week, the president interviewed Sen. Lee in 2018 when looking to replace retiring Justice Anthony Kennedy. Sen. Lee said at the time that if he were asked to consider the job, “I would not say no.”
Selection of conservative judges is no guarantee rulings will match a conservative agenda.
Emma Green, writing for The Atlantic, noted that Justice Anthony Kennedy, nominated by Ronald Reagan, departed from conservatives on gay rights, and David Souter, George H.W. Bush’s pick, upheld the constitutional right to an abortion. More recently, Gorsuch sided with liberal justices in protecting LGBTQ rights, and Chief Justice John Roberts, appointed by George W. Bush, voted to protect Deferred Action for Childhood Arrivals, the immigration program that Trump wanted to end in favor of congressional action.
The justices this past year did, however, deliver opinions that the president and his supporters applauded: allowing employers who cite religious objections to decline to provide no-cost birth control as required by the Affordable Care Act (Little Sisters of the Poor v. Pennsylvania); allowing church-run schools a religious exemption with regards to federal discrimination laws with regard to the hiring teachers (Our Lady of Guadalupe School v. Morrissey-Berru); and ruling that it’s unconstitutional to exclude students at private, religious schools from receiving taxpayer-funded scholarships (Espinoza v. Montana Department of Revenue).
Previously, Roberts defended the judiciary as independent of partisan politics in response to Trump deriding a California jurist as an “Obama judge” who ruled against one of Trump’s immigration restrictions, Politico reported.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement in November 2018. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
There currently is no vacancy on the nine-member U.S. Supreme Court. Justice Ruth Bader Ginsburg is 87 and has recently been treated for cancer. Justice Stephen Breyer is 82 and Justice Clarence Thomas, the court’s longest serving member, is 72. (There is no mandatory retirement age for justices, nor for any federal judge, although the average length of tenure is 16 years.)