WASHINGTON — President Donald Trump on Wednesday released the latest version of his US Supreme Court short list, hoping to once again make the courts an issue that even his critics on the right can rally behind in November.
Trump announced 20 new names to add to the list that he’s pledged to choose from if another seat opens up on the Supreme Court. The latest additions are a who’s who of the conservative legal world, a mix of federal judges confirmed during his first term, including former White House lawyer and DC Circuit Judge Greg Katsas; Republican Sens. Tom Cotton, Ted Cruz, and Josh Hawley; current White House deputy counsel Kate Comerford Todd; Christopher Landau, Trump's US Ambassador to Mexico; and current and former Justice Department officials.
Trump’s strategy is the same as it was in 2016, but the political landscape is dramatically different. Four years ago, Senate Majority Leader Mitch McConnell kept the late justice Antonin Scalia’s seat open in the hopes of a Republican win in the fall by blocking President Barack Obama’s nominee, Judge Merrick Garland. Now, there is no pending Supreme Court vacancy to create a sense of urgency for Republican voters; there isn’t the same backlog of lower court openings to fill either.
The Senate has confirmed more than 200 federal judges under Trump. The president cited an inflated version of that statistic in his acceptance speech at the Republican National Convention in August and in his remarks at the White House announcing the new list on Wednesday — he said that more than 300 judges would be confirmed by the end of his first term — but his message to Republican voters was clear: Reshaping the ideological makeup of the courts was, and would continue to be, central to accomplishing the broader conservative political agenda.
In announcing the new list on Wednesday, Trump said that appointing Supreme Court justices was “the most important decision an American president can make. For this reason, candidates for president owe the American people a specific list of individuals they consider for the United States Supreme Court.”
It’s still not clear if the Biden campaign will put the future of the Supreme Court and judicial nominations front and center in the same way. Joe Biden didn’t talk about courts in his Aug. 20 speech accepting the Democratic presidential nomination. Earlier in the summer, he pledged to nominate a Black woman for the Supreme Court but hasn’t publicly elaborated on whom he may have in mind.
Trump on Wednesday explicitly called on Biden to release his own list. A spokesperson for Biden’s campaign declined to comment on whether they would release a list of Biden’s Supreme Court contenders.
Liberal advocacy groups, meanwhile, are ramping up election messaging around the courts and pouring millions of dollars into ad campaigns trying to connect top voting issues for Democrats — like healthcare, voting rights, and abortion rights — to the future of the federal bench. At the Democratic National Convention, the party adopted a platform that for the first time supported “structural” changes to the Supreme Court. Liberals frustrated that the left has fallen behind Republicans in making the courts a priority for the base saw it as a watershed moment.
The reference to “structural court reforms” in the platform was vague, though — it didn’t address specific ideas being batted around, such as term limits for justices or adding seats to the Supreme Court and lower courts (known as “packing the court”), which Biden has said he doesn’t agree with.
“There’s still a lot of work to be done to connect the courts to the issues that matter for voters on the left and generally, except for the far right, where they have a really deep appreciation for how important the courts are,” said Caroline Fredrickson, a senior fellow at the Brennan Center for Justice and past president of the liberal lawyers group the American Constitution Society.
Still, she said, the momentum on the left around the courts during this election cycle was a sign that party elites and the Biden campaign were paying more attention.
“It’s a big step forward from 2016 when there wasn’t really anything at all,” she said.
Mike Davis, head of the Article III Project, a group that backs Trump’s judicial nominees, said he thought judicial nominations would still unite Republican voters behind the president this year. Trump’s success in reshaping the federal bench with conservative-leaning appointees — roughly a quarter of all active federal judges have been confirmed since 2017 — was the “biggest accomplishment” of his first term, Davis said.
In making the case against a Biden presidency in a speech at the Republican National Convention, Senate Majority Leader Mitch McConnell picked up on the court reform push on the left, claiming Democrats “want to pack the Supreme Court with liberals intent on eroding our constitutional rights.”
“In 2016, conservatives were motivated by the fact that they were going to lose a conservative majority on the Supreme Court with Justice Scalia’s passing,” Davis said. “In 2020, conservatives should also be concerned they’re also going to lose a conservative majority ... with Democrats threatening to pack the Supreme Court.”
A recent report from the Pew Research Center showed that the future of the Supreme Court is a higher priority for voters this year compared with a similar report the group published in July 2016. Supreme Court appointments ranked third on a list of issues that the registered voters who were surveyed considered “very important," after the economy and health care; it was ranked 9th in the 2016 report. The report also showed a narrower gap between the percentage of Biden and Trump voters who considered Supreme Court appointments a top issue, compared with Clinton and Trump voters polled in 2016.
Absent an open seat, Trump’s pitch to his base this year is that even the current conservative-majority court isn’t conservative enough. He announced via Twitter on June 18 that he would release an updated Supreme Court short list by Sept. 1. On the day of the tweet, the court issued a 5–4 decision finding that the Trump administration violated federal law when it rescinded the Deferred Action for Childhood Arrivals program; Chief Justice John Roberts Jr. wrote the majority opinion, to the dismay of conservatives.
“Based on decisions being rendered now, this list is more important than ever before (Second Amendment, Right to Life, Religous [sic] Liberty, etc.) — VOTE 2020!” Trump tweeted at the time.
As part of his reelection pitch, Trump has highlighted decisions where Roberts sided with the court’s more liberal justices in ruling against his administration. As part of a string of tweets the day the DACA decision came down, the president also tweeted: “The recent Supreme Court decisions, not only on DACA, Sanctuary Cities, Census, and others, tell you only one thing, we need NEW JUSTICES of the Supreme Court.”
In an interview earlier this month with the Christian Broadcasting Network, Vice President Mike Pence said Roberts “has been a disappointment to conservatives.”
Trump last released a version of the list in November 2017. It featured 25 names, including then-DC Circuit judge Brett Kavanaugh, who became Trump’s second appointee to the Supreme Court.
Trump turned to the Federalist Society and the Heritage Foundation for guidance on his first Supreme Court short list, which he released in May 2016. He added names in September 2016, including then-10th Circuit judge Neil Gorsuch, who became his first Supreme Court nominee. Some of the new names on the president’s updated list were featured in a recent article pitching new Supreme Court contenders by two Heritage Foundation scholars: John Malcolm, who was recently nominated by Trump to serve on the US Sentencing Commission and who wrote a similar piece in 2016 after Scalia died, and Zack Smith.
Malcolm and Smith told BuzzFeed News shortly before Trump revealed his updated list that they hadn’t been in touch with the White House or the campaign about the additions.
“To the extent the voters cared about the Supreme Court in 2016, they’re still going to very much care about the Supreme Court now,” Smith said. “We don’t have an open seat that’s waiting to be filled, but the potential for a vacancy certainly exists.”
The 20 new additions to Trump’s Supreme Court short list are:
Judge Bridget Bade was confirmed in March 2019 to the US Court of Appeals for the 9th Circuit.
Kentucky Attorney General Daniel Cameron is the first Black attorney general in the state and has served in that position since December.
Former US solicitor general Paul Clement served under the George W. Bush administration and has since become a powerhouse Supreme Court litigator on behalf of conservative causes.
Arkansas Sen. Tom Cotton clerked for a federal judge and briefly worked as a lawyer before joining the US Army and later embarking on his political career. Right after Trump announced his name as a Supreme Court contender Cotton tweeted, "It's time for Roe v. Wade to go," referring to the court's landmark abortion rights decision.
Texas Sen. Ted Cruz clerked for the late Chief Justice William Rehnquist, worked in the Justice Department during the George W. Bush administration, and served as the Texas solicitor general.
Judge Stuart Kyle Duncan was confirmed to the 5th Circuit in April 2018. He worked as general counsel for the conservative legal advocacy group the Becket Fund for Religious Liberty, and as a senior lawyer in the Louisiana attorney general’s office.
US Assistant Attorney General Steven Engel is the head of the Justice Department’s Office of Legal Counsel, the section that sets legal policy for the executive branch. Under his tenure, the office has issued memos backing the president’s refusal to allow current and former White House officials from testifying in Congress, rejecting congressional Democrats’ demands for Trump’s tax returns from the Treasury Department, and concluding the acting director of National Intelligence wasn’t required to transmit to Congress a whistleblower complaint about Trump’s July 25, 2019, call with the president of Ukraine that became the basis of impeachment proceedings.
Former US Solicitor General Noel Francisco was Trump's first solicitor general and stepped down in July. Francisco oversaw the numerous legal fights that defined Trump's first term, spanning the president's travel ban executive orders; efforts to roll back the Deferred Action for Childhood Arrivals program and use federal funds that Congress didn’t approve to pay for border wall construction; and Trump’s fights with Democrats and prosecutors in New York over access to his financial records.
Missouri Sen. Josh Hawley previously served as the attorney general of Missouri and clerked for Chief Justice John Roberts Jr. He worked for the conservative legal advocacy group the Becket Fund for Religious Liberty, and in that role and later as Missouri attorney general was involved in legal challenges to the Affordable Care Act.
Judge James Ho was confirmed to the 5th Circuit in December 2017, where he has staked out strong positions on protections for police accused of misconduct, gun rights, and abortion.
Judge Greg Katsas served as a senior official in the White House Counsel’s Office under Trump before his confirmation to the DC Circuit at the end of 2017. He recused himself from some of the big political legal fights between Trump and congressional Democrats that have come before the court, but Malcolm and Smith highlighted an opinion Katsas wrote rejecting a challenge to the administration’s decision to resume federal executions by lethal injection. Katsas was also one of the judges involved in drafting a letter signed by more than 200 federal judges opposing a proposed judicial ethics rule that would limit judges’ involvement in the Federalist Society; the rule was never adopted.
Judge Barbara Lagoa was confirmed to the 11th Circuit at the end of 2019; she’d previously served as a state judge in Florida since 2006 and was the first Latina woman to serve on the Florida Supreme Court. She recently denied a request by voting rights groups that she recuse herself from a fight over a Florida law that the challengers said would affect the right to vote of approximately 750,000 Florida residents with previous felony convictions.
US Ambassador to Mexico Chris Landau is a longtime Washington lawyer. Trump had previously considered him for a seat on the DC Circuit and for US solicitor general before tapping him for the ambassador post.
Florida Supreme Court Justice Carlos Muñiz has served on the state’s highest court since he was appointed by Gov. Ron DeSantis in January 2019. He’s long been involved in Republican politics in Florida and served in the Trump administration as general counsel for the Department of Education.
Judge Martha Pacold was confirmed to the US District Court for the Northern District of Illinois in July 2019. She clerked for Justice Clarence Thomas and served in the Justice Department during the George W. Bush administration.
Judge Peter Phipps was confirmed to the 3rd Circuit in July 2019 after briefly serving as a federal district judge in Pennsylvania. He spent the bulk of his career at the Justice Department, both during the George W. Bush and Obama administrations.
Judge Sarah Pitlyk was confirmed to the US District Court for the Eastern District of Missouri in December 2019 after working for the Thomas More Society, a conservative legal advocacy group. She clerked for Justice Brett Kavanaugh when he was still a judge on the DC Circuit. She received a rare “not qualified” rating from the American Bar Association committee that vets federal court nominees prior to her confirmation, given the fact that she’d worked as a lawyer for less than 12 years and had no substantive litigation experience.
Judge Allison Rushing was confirmed to the 4th Circuit in March 2019. She clerked for Justice Clarence Thomas and Justice Neil Gorsuch when he was a judge on the 10th Circuit, and then spent several years in private practice. She was 36 years old when she joined the court, making her Trump’s youngest nominee at the time, and faced questions from Democrats and Republicans on the Senate Judiciary Committee about whether she had enough experience to serve on a federal appeals court.
White House deputy counsel Kate Todd previously worked as chief counsel for the US Chamber Litigation Center and as a lawyer in the George W. Bush administration. She clerked for Justice Clarence Thomas.
Judge Lawrence VanDyke was confirmed to the 9th Circuit in December 2019, after serving as a senior official in the Justice Department’s Environment and Natural Resources Division. He received a rare “not qualified” rating from the American Bar Association committee that vets judicial nominees. A majority of the committee found he had enough experience, but reported that interviewees described him as “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice.”
A few names were notably missing from the list, including DC Circuit Judge Neomi Rao, who was a top Trump administration official overseeing the rollback of federal regulations before she was confirmed in March 2019, and Judge Justin Walker, who will join the DC Circuit this fall after just a year as a district judge in Kentucky and whose swift rise in the conservative legal world — he’s only 38 years old — has been backed by McConnell.
When Trump released his original list of Supreme Court contenders in May 2016, it was an unusual move. The nomination process is usually shrouded in secrecy, save for the occasional leak. But then-candidate Trump touted the Supreme Court as a reason for Republicans to rally around him, even if they disagreed with other parts of his campaign or simply disliked him.
“If you really like Donald Trump, that's great, but if you don't, you have to vote for me anyway. You know why? Supreme Court judges. Supreme Court judges,” Trump said at a rally in July 2016, arguing that the next president “will probably have three, could be four, could even be five” seats to fill on the court.
It was a successful pitch. More than a quarter of Trump voters surveyed in a Washington Post poll said the Supreme Court was the most important factor in their decision. Trump got two justices confirmed in his first term, both of whom came from his public short list — Justices Neil Gorsuch and Brett Kavanaugh.
Trump is using the same rhetoric this year. At an Aug. 21 event, he repeated his line that whoever won in November “could have anywhere from two to four, to maybe even five — just based on statistics, statistically — Supreme Court justices to pick.” (His math assumes some of the court’s younger, right-leaning members would step down along with octogenarian Justices Ruth Bader Ginsburg and Stephen Breyer.)
Trump is also running on his success getting hundreds of judges confirmed to the federal district and appeals courts during his first term. There are currently 81 lower court vacancies. It’s a sizable number, although none are for the more powerful appeals courts. In a move that surprised some of the president’s allies, the “2nd Term Agenda” released by Trump’s campaign a few weeks ago didn’t mention judicial vacancies. Republican Sen. Chuck Grassley tweeted his disappointment, saying the issue “needs 2b center stage again this election.”
A spokesperson for Grassley told BuzzFeed News in an email that the White House had since consulted with Grassley about Trump’s Supreme Court short list, “so he knows judges will remain a priority in the second term.” Grassley tweeted his support for Trump’s list after it was announced on Wednesday.
Leonard Leo, who has advised Trump on judicial nominations since his first campaign, told BuzzFeed News that he didn’t share Grassley’s concern. The president making a point of releasing an updated Supreme Court short list was “a major inflection point,” he said.
“He is undertaking a singular, very focused effort to inform people,” Leo said.
Leo stepped down as a senior executive with the Federalist Society earlier this year to launch CRC Advisors, a group involved with a multimillion-dollar advocacy campaign in support of Trump’s judicial nominees, along with other conservative causes. (He is still cochair of the Federalist Society’s board.)
Leo said he provided “advice and guidance about the judicial selection process and about particular judicial nominations” to the White House, adding, “and that’s the role I’m happy to play now when asked.” He declined to share details about those discussions. He is also listed as a member of the campaign-affiliated “Lawyers for Trump” but declined to comment on whether he’s been active in that effort.
A Trump campaign spokesperson declined to comment.
The Democratic Party may have signaled that it’s more open to proposals for changing the structure of the Supreme Court, but Biden previously told the New York Times that he’s against adding justices and term limits. Biden, per his website and in a statement to BuzzFeed News from his campaign, has broadly pledged to appoint diverse justices and judges committed to “civil rights and civil liberties” and who “respect” the abortion rights precedent of Roe v. Wade and the landmark school segregation decision Brown v. Board of Education.
In June, Biden said his team was “putting together a list of a group of African American women who are qualified and have the experience to be on the court,” but he didn’t commit to making that list public.
Democratic operatives and liberal legal advocates who spoke with BuzzFeed News didn’t agree about whether Biden should release his own list of names. Fredrickson of the Brennan Center for Justice said she went “back and forth” about it, noting there was “discomfort” within the party about giving Republicans a head start to attack potential nominees.
Faiz Shakir, a Democratic political operative who ran Sen. Bernie Sanders’ 2020 presidential campaign, said he didn’t think Biden needed to release his own list of names or get behind a specific court reform idea to make the issue resonate with voters.
“There is a temptation to say, ‘Well, Republicans do this, let’s just follow them.’ The hard part is to say we have a different set of values that we promote; we shouldn’t have a system that promotes a Brett Kavanaugh–style hack on the court,” Shakir said. “You don’t play politics with these names.”
Brian Fallon, executive director of liberal advocacy group Demand Justice, said he hoped Biden would release a list to counter Trump’s. The court reform language in the Democratic Party platform was a “big milestone,” he said, but he wants Biden to lean in on the issue more and for Democrats to “stop pretending that it’s not the case that we have two liberal justices that are over 80 years old.”
“Democrats have often made the mistake that the issue only galvanizes Republicans and less so Democrats, and you know what makes that inevitable? Continuing to cede the field to Republicans,” Fallon said.
Regardless of whether Biden ends up releasing a list, Shakir told BuzzFeed News, the nascent Biden transition team was mindful of liberals’ frustration with the Obama administration’s slow pace on nominations and was working on a plan to start filling vacancies “on day one.” He declined to say who was involved in those discussions.
There’s more financial firepower behind pitching the courts as a voting issue for Democrats in 2020 than there was in 2016. Demand Justice and Take Back the Court, which has led the push to add seats to the Supreme Court, both launched in the middle of 2018 and have each spent millions of dollars in courts-focused messaging over the last two years.
In July, Demand Justice launched a new political advocacy arm called the “Supreme Court Voter” project and announced a $2 million initial ad campaign in battleground states. They also bought ad time during the Democratic National Convention.
Take Back the Court has spent $1.5 million trying to get the party to support court expansion since launching in 2018. Director Aaron Belkin said Democrats had moved “light-years” since 2018; he noted that the Center for American Progress had come out this year in favor of term limits and more Democratic politicians and candidates were talking publicly about court reform.
Biden’s opposition to changing the size of the Supreme Court earned him an “F” grade from Take Back the Court. Still, Belkin said he was happy with the progress they’d made in getting the issue in the party platform, even without specifics. He said it was a warning to Roberts that Democrats were at least open to a discussion about drastic changes to the court if the justices stood in the way of their policy agenda.
“What the party said was historically unprecedented and an incredibly powerful signal to John Roberts that he needs to keep his grubby fingers off bills that allow Black people to vote, off bills that will save climate change, off bills that will end gun violence,” Belkin said. “And if he is not getting that signal, there will be a price to pay.”
Groups like Demand Justice and Take Back the Court are starting to plan ahead for a potential Biden victory. Fallon said they’re working with other liberal groups to come up with a plan for identifying and pitching judicial nominees to a Biden White House. They’ll be pushing for greater professional diversity — more public defenders and civil rights lawyers, and fewer former prosecutors and corporate lawyers — and less deference to home state senators, he said.
They’re also strategizing around how to convince Congress to back legislation to expand the Supreme Court and add judgeships to the lower courts, which is something the federal judiciary has wanted for years to meet increased caseload demands.
“We see a huge opportunity in the next four years to reset things in a positive way,” Fallon said.