Washington Wednesday - Campaigning on the Supreme Court

MEGAN BASHAM, HOST: It’s Wednesday, the 16th of September, 2020. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Megan Basham.

MARY REICHARD, HOST: And I’m Mary Reichard. First up: Supreme Court nominees.

Last week, President Trump released a list of 20 potential Supreme Court nominees he has promised to pick from, should he get elected to a second term and have a high court vacancy to fill. Here he is making the announcement at the White House.

TRUMP: Every one of these individuals will ensure equal justice, equal treatment, and equal rights for citizens of every race, color, religion, and creed.

BASHAM: The president already had a list of potential high court nominees. He released two, in fact, during his 2016 campaign. And that was widely credited with helping him win the White House. But the Supreme Court had an empty seat at the time, and there’s not one now. Still, the president warned, that could easily change during the next four years.

TRUMP: In all likelihood, one, two, three, and even four Supreme Court justices. The outcome of these decisions will determine whether we hold fast to our nation’s founding principles or whether they are lost forever.

President Trump warned that his rival for the White House would put forth nominees who are “extremely far-left” and who could never stand up to public scrutiny. Joe Biden has not released his own list of potential nominees. He’s only pledged to nominate the first black woman to the high court. The president says that’s not good enough and challenged Biden to name names so that voters have a more informed vote come November. 

But will the Supreme Court play as big a role in this election as it did last time?Joining us now to talk about it is John Malcolm. He’s director of the Meese Center for Legal and Judicial Studies at The Heritage Foundation. Thanks for joining us today.

JOHN MALCOLM, GUEST: Oh, it’s my pleasure. Good to be with you.

REICHARD: President Trump’s first list of potential Supreme Court nominees came in 2016 after the death of Justice Antonin Scalia. That amplified the importance of who would get to fill that seat—that is, whoever won the White House. President Trump amended the list in 2017 and added Brett Kavanaugh, who became his second nominee and is now Justice Kavanaugh.

A lot of names remain on this current list. John, talk about timing. Why put out a refreshed list right now?

MALCOLM: I think for a variety of reasons. One, it’s to remind people who supported him about how important the Supreme Court list was to his past election and, obviously, the next president is likely to have other vacancies on the court to fill. And also to highlight the importance that the Trump administration has placed on naming high quality men and women who are committed textualists and originalists not only to the Supreme Court but also to the lower federal courts as well.

REICHARD: Three of those new additions are sitting U.S. Senators: Tom Cotton of Arkansas, Ted Cruz of Texas, and Josh Hawley of Missouri. Senators Cruz and Hawley say they’re not interested in the job. So what do you make of the president including them?

MALCOLM: Well, so before this latest iteration of this list, there had only been one non-judge on the list. That was Senator Mike Lee. This last iteration adds quite a few names, so not only the three senators whom you just named, but also Daniel Cameron, the Kentucky attorney general, and five current or former government officials who have never served as judges. So, clearly, the president has widened his aperture somewhat. I think many of the names on the list, including those three senators Cruz, Cotton, and Hawley, are all known and well-liked and admired by social conservatives. I detected a slight nod toward social conservatives with respect to this latest list. But all of these—all four of the senators, including Senator Lee, are certainly well-qualified if they were interested in serving on the court. Three of them clerked for Supreme Court justices and the fourth, Tom Cotton, clerked for Jerry Smith on the 5th Circuit Court of Appeals. So, they have bona fides in their own right. Whether they would accept a nomination if offered one, I don’t know.

REICHARD: Is this a big departure from the norm to have people on the list that have never been judges?

MALCOLM: Yes. But it’s not unprecedented. Elena Kagan, who sits on the Supreme Court and whether you agree with her or disagree with her, you have to admire her legal acumen. She never served as a judge on any court before and so it is unusual. Most of the people who get named to the Supreme Court are not only judges but usually are federal appellate judges. But it’s not unprecedented.

REICHARD: President Trump pledged to fill vacancies with people in the mold of the late Justice Antonin Scalia, and current justices Clarence Thomas and Samuel Alito. Why so specific as that, do you think?

MALCOLM: Well, because I think that those three justices are admired widely in conservative circles as being committed originalists and textualists. That is a judicial philosophy that the president obviously admires, as do I.

REICHARD: Joe Biden has not released his own list as we said in the intro. He says he’s working on one but no word on whether he plans to make it public. The Supreme Court influences so many areas of our cultural and political life, for good or for ill. Does this mean naming names of potential nominees will become a common practice in presidential campaigns?

MALCOLM: Might be. So it had never happened before and Donald Trump broke the mold in 2016 when he came out with his list. It was actually instrumental in terms of his winning the race. There were a lot of people who were very, very skeptical. Some of them probably still are skeptical about President Trump and his conservative bona fides. But they cared a lot about the judiciary and at the time the vacancy that existed on the Supreme Court and when President Trump—then candidate Donald Trump—put out that list, there were a lot of people who breathed a sigh of relief and said, well, we may not know or trust Donald Trump on a whole host of issues, but on this issue which we care a lot about, this is a solid list. And he has certainly performed during his first term, keeping to that pledge.

REICHARD:  Along those lines: This past term with two justices Trump chose turned out decisions that were a disappointment for many conservatives. For example, ruling that federal employment discrimination laws protect LGBT employees, essentially redefining terms not intended when the law was passed. Do you think this changes things?

MALCOLM: Well, so you’re referring to the Bostock decision, which was written by Justice Gorsuch and joined by Chief Justice Roberts. I do think it changes things in this regard: As I pointed out a moment ago, I think this new list contains a lot of names of people who are known and admired by social conservatives. It doesn’t make them any less qualified to sit on the Supreme Court, but they’re names that people will have a certain comfort level. They might have taken position as judges in religious liberty cases or in abortion cases that were pleasing to social conservatives, or before they became judges they served for religious liberty organizations—like Lawrence Van Dyke working for the Becket Fund, Sarah Pitlyk working for the Thomas More Society. So, I detected a slight shift away from judges who had expressed reluctance or had criticized the administrative state more towards people who have a bit of a track record on issues that social conservatives would care about.

REICHARD: And finally, John, I want to return to the question we started with. How big a role do you think the Supreme Court will play in this year’s election?

MALCOLM: Well, it oughta play a big role. There is a very, very narrow conservative majority, if you could even call it that, on the court now. The next president is going to get to name at least one, if not, as the president said, three or four—and that is a possibility—justices to the Supreme Court and, of course, will have many opportunities to fill hundreds of vacancies on the lower federal courts. And, as you pointed out, these judges decide issues of great consequence, both statutory cases and constitutional cases that affect all of us. So I think that the Supreme Court and the lower federal courts of appeals ought to be considered to be on the ballot in every election and they certainly are with this one.

REICHARD: John Malcolm is a senior fellow at the Heritage Foundation. Thanks so much for joining us today.

MALCOLM: Good to be with you.

(AP Photo/Patrick Semansky, File) In this June 29, 2020, file photo, the Supreme Court is seen on Capitol Hill in Washington. 

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