The reaction to President Trump’s updated list of potential Supreme Court nominees revealed new fissures on the Right over what conservatives should be looking for in Republican high-court nominees.
The addition of Republican Sens. Ted Cruz of Texas, Tom Cotton of Arkansas, and Josh Hawley of Missouri to Trump’s prospective nominees especially highlighted disagreements among conservatives prioritizing judicial philosophy versus certain outcomes on the court.
Conservative responses were overwhelmingly positive. Anti-abortion activist Marjorie Dannenfelser of the Susan B. Anthony List hailed the Trump list as “filled with all-stars” and reflective of “the president’s firm and proven commitment to only nominating Supreme Court justices who will respect the Constitution and the inalienable right to life.” March for Life President Jeanine Mancini concurred: “One of President Trump’s greatest accomplishments has been the restoration of the judicial system through the appointment of judges who respect life and the U.S. Constitution.”
“President Trump continues to keep his promise to prioritize the appointment of judges while Joe Biden continues to duck the issue and hide his list,” Judicial Crisis Network President Carrie Severino said in a statement.
But digging beneath the surface, some conservatives considered names on the list too libertarian. Others protested that Hawley was on the shortlist but Judge Neomi Rao was not. Ashley Baker, policy director at the Committee for Justice, a right-leaning organization that supports constitutionalist judges, tweeted that she was “absolutely livid” that Rao was excluded and expressed reservations about what she described as Hawley’s “outright abandonment of textualism when considering our nominees.”
Hawley has taken himself out of the running, writing on Twitter that “Missourians elected me to fight for them in the Senate, and I have no interest in the high court.” But after the Supreme Court handed down its Bostock decision on LGBT employment nondiscrimination, authored by Trump-appointed Justice Neil Gorsuch, Hawley wondered on the Senate floor whether the conservative legal movement as it had existed since the Reagan administration might be in need of a major overhaul. “It’s time for religious conservatives to take the lead rather than being pushed to the back,” he said.
John Malcolm, vice president for the Institute for Constitutional Government and director of the Meese Center for Legal and Judicial Studies at the conservative Heritage Foundation, called Trump’s picks a “fine list,” noting some overlap with his own recommendations. Yet, he said, “There are a fair number of names of people on this list who are known to social conservatives who might not be known to others.”
In his own remarks announcing the list on Wednesday, Trump cited both judicial philosophy and policy outcomes. “Radical justices will erase the Second Amendment, silence political speech, and require taxpayers to fund extreme late-term abortions,” he said. The president launched a preemptive strike on his Democratic opponent’s likely high-court nominees.
“If this extreme movement is granted a majority on the Supreme Court, it will fundamentally transform America without a single vote of Congress,” Trump declared. “They will give unelected bureaucrats the power to destroy millions of American jobs. They will remove the words ‘under God’ from the Pledge of Allegiance. They will erase national borders, cripple police departments, and grant new protections to anarchists, rioters, violent criminals, and terrorists.”
Running in 2016 with a thin record to appeal to social conservatives, Trump vowed to fill the Supreme Court vacancy created by Justice Antonin Scalia’s death with someone in the same “mold” as the conservative jurist and made public a list from which he would choose. Trump now has a stronger record on these issues from a conservative perspective, but many on the Right have remained frustrated by the Republican appointees’ inability or unwillingness to overturn liberal precedents such as Roe v. Wade.
“I think having litmus tests is a bad idea for a whole host of reasons,” Malcolm said. “But I understand the frustration.”
Hawley has vowed to vote against future nominees who will not say Roe was wrongly decided. “It’s time for Roe v. Wade to go,” Cotton tweeted after the new list was announced.
Some liberals have proposed expanding the size of the Supreme Court if Biden is elected and Democrats capture the Senate, an idea that could be expedited if the legislative filibuster is eliminated. Much is also riding on where the next high-court vacancy comes from.
Malcolm predicted that if Trump nominates a successor to Justice Ruth Bader Ginsburg, it will make Brett Kavanaugh’s hearings look like a “pillow fight.”
“Going from Anthony Kennedy to Kavanaugh is akin to going from Sandra Day O’Connor to Sam Alito,” he said. “Going from Ruth Bader Ginsburg to [a Trump nominee] is akin to going from Thurgood Marshall to Clarence Thomas.”
