Trump Seeks to Harness Supreme Court Losses in Making 2020 Case

President Donald Trump is seizing on a string of losses at the Supreme Court to galvanize his political base with calls to remake the judiciary with more conservative judges, a key issue that fueled his first presidential run.

Trump has promised a new list of potential Supreme Court nominees this summer, repeating the gambit he used to calm doubts about him among some Republicans in 2016, and demanded even more justices as conservatives reel over unwelcome decisions in major cases despite a 5-4 majority on the court.

The latest blow came Thursday, when a 7-2 court rejected Trump’s bid to kill a New York grand jury subpoena for his tax returns. The ruling was coupled with a separate 7-2 decision that knocked down House Democrats’ subpoenas for his financial records, but it added to stinging defeats on abortion, gay rights and immigration that have seen conservative justices side with the liberal minority.

The rulings set the courts up as a potential major battleground between Trump and Joe Biden, as some Democrats also move to mobilize progressive voters against Trump’s reshaping of the judiciary. And the stakes are high -- the two oldest justices -- Ruth Bader Ginsburg, 87, and Stephen Breyer, 81 -- are both liberals and could potentially retire during the next administration.

“This is a monumental election,” said Mike Davis, president of the Article III project, which advocates for the confirmation of conservative justices. “It’s very important to remind conservatives that there is a huge divide between on the types of judges that President Biden would appoint versus what President Trump would appoint.”

During the 2016 campaign, Trump issued a list of Supreme Court candidates and later expanded it, adding Neil Gorsuch in a second list and ultimately picking him. He later added five more names to his list, including Brett Kavanaugh, his second nominee, whose confirmation was marred by an explosive Senate battle over sexual assault allegations. Nonetheless, the confirmation of both firmed up a 5-4 conservative majority, with none of the conservative justices older than 72 now.

Trump also arrived to dozens of federal court vacancies, owed in large part to Senate Majority Leader Mitch McConnell, which allowed the new president to quickly begin nominating judges across the country. “My motto is: Leave no vacancy behind,” McConnell told Trump last year.

‘Conservative Disappointment’

Still, Trump and conservatives haven’t been satisfied with the results. Roberts sided with the four liberals in June in blocking Trump from ending the Obama-era Deferred Action for Childhood Arrivals program, or DACA, that shields about 670,000 young undocumented immigrants from deportation and lets them seek jobs. He also sided with the four liberals in striking down a Louisiana abortion law, a surprise reinforcement for women’s reproductive rights.

Both Roberts and Gorsuch joined the liberal justices in ruling that federal law protects LGBT workers from job discrimination, another watershed decision. Gorsuch also sided with the liberals in a landmark ruling on the rights of American Indians on Thursday.

“Conservative disappointment with the last term will only fuel the desire to appoint even more judges who are courageous in their commitment to the text and original meaning of the Constitution,” said Carrie Severino, president of the conservative Judicial Crisis Network. “So I expect it to continue motivating voters, just as it did in 2016.”

Trump tweeted in June that he needed new justices and that he would release a fresh list of potential nominees.

“What has been underscored to him after all of these rulings is that we need more conservative justices on the court. That’s something he’s very strong about,” White House Press Secretary Kayleigh McEnany said during a briefing Thursday. “I think that’s been the big takeaway.”

The lifelong Supreme Court appointment is a coveted opportunity for any U.S. president that speaks to the politicized nature of the country’s judicial system. Trump has talked to aides about the impact a third appointment would have on his legacy, one official familiar with the matter said. However, despite rumblings and reports that a retirement could give the president nother appointment before November, those around him think it’s highly unlikely and it hasn’t been actively discussed, several people familiar with the matter said.

Progressives Mobilize

“The president’s record appeals to conservatives who supported him in 2016,” Trump campaign communications director Tim Murtaugh said. He said Biden would “bend to the will of the extreme left” on appointing judges. “On the question of judicial appointments, President Trump wins hands-down.”

Trump and his campaign marked a milestone last month with the confirmation of his 200th judge. “This work is especially important due the left-wing’s push to throw away legal precedent and to abandon the Constitution in order to impose its own radical agenda,” White House spokeswoman Sarah Matthews said in a statement.

Democrats have their own pitch to voters concerned about the courts. Biden has pledged to nominate a Black woman to the high court, and has said his wife encouraged him to run again this year because of what’s happening to the courts. He’s also mused about nominating former President Barack Obama.

Biden’s campaign will also highlight Trump’s ongoing quest to quash Obamacare. The court is set to hear arguments in the nine-month term that starts in October on the administration’s latest attempt to topple the law.

“Every time Donald Trump raises the Supreme Court, he’s reminding the American people that in the throes of this pandemic he’s seeking to use the court to cost millions their health care and to lay siege to basic reproductive freedoms,” said Biden spokesman Andrew Bates.

A group of progressive organizations is behind Supreme Court Voter, an effort to mobilize like-minded Americans by arguing the court’s future is at stake. It has announced an ad blitz in swing states including Pennsylvania, Michigan and Wisconsin, warning about the prospect of a 7-2 conservative majority if Trump wins.

“I think we’ve seen a sea change over the last four years in how Democrats are approaching and understanding the importance of the courts,” said Christopher Kang, chief counsel of Demand Justice, which advocates for progressive judges.

“There’s been this conventional wisdom that Democrats shouldn’t talk about the courts, because talking about the courts only energizes conservatives,” Kang said. “We don’t think that’s true any more.”

Trump conveyed a sense of urgency on the issue in an interview with Sean Hannity of Fox News on Thursday night. “We need more judges and more justices,” he said. “You see that now with the Supreme Court, more than ever. And the next president -- I’ve had two -- and the next president is going to be able to pick two, or three, or one or whatever.”

©2020 Bloomberg L.P.

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