Three Supreme Court experts recently discussed the potential impact the high court could have on the 2020 election. They speculate that the most extreme development would be a sudden vacancy on the Court that would put President Trump in a position to nominate a third justice.
Curt Levey of the Committee for Justice said, “That would really have a big impact on the election if there was a struggle over a Supreme Court nomination.”
He said of Trump, “Would he have to nominate a moderate given that there’s no time for a do-over if whoever he picks gets rejected or has some sort of scandal?”
He’ll Have a Fight on his Hands No Matter What
Carrie Severino of the Judicial Crisis Network disagreed, asking, “So close to an election, does this mean you have to appoint a ‘moderate’ because you can’t afford to have a big fight? Look, whoever Trump appoints, to ANYthing – even to Dogcatcher – he will get a big fight right now. It’s an election year.”
“And it doesn’t matter if the person has the cleanest background in history,” she insisted. “That was part of the motivating factor to choose Brett Kavanaugh for the Supreme Court because he had been looked at in-depth so many times by the FBI. It was like, ‘This guy is as clean as a whistle. We KNOW they’ve got nothing on him.’ Well, you can invent stories about anyone regardless of how completely clean their background is.”
Severino concluded, “So I think it would be a mistake to say, ‘Well, let’s try to put up a moderate or compromise candidate.”
Levey believes Trump would at least need to pick someone who, “Doesn’t have a track record that makes them too easy to attack. It’s sad that too much of a track record these days counts against you. But as a practical matter, Trump will look for people who we’re confident of their principles but don’t give the Left too much to attack.”
The Bolder the Better
Severino responded, “Trump has actually built a record of getting confirmed more people than any other president that I can think of that were just these bold choices that you would have said in any previous Republican presidency, ‘Oh, that guy is too hot to handle’ or ‘She would never get through because of what she said’ or some such thing. You could go down a huge list of those.”
She explained Trump likes that because, “That shows you have the courage of your convictions. You’re not going to be the kind of person who says, ‘Aw, I don’t want to have to make this tough call because I know I’m going to get a bad op-ed in the New York Times.’ These are all people who’ve already had op-eds in the New York Times, criticizing them on something like their stance on Obamacare or on social issues.”
“That’s the kind of thing that gets you into consideration in this presidency because they know that this is someone who’s not afraid to follow the law where it leads, even if it means something that you might think is going to be a bad thing for your career. And I think that’s really good news because it means they’re going to carry that boldness onto the bench as well.”
‘Ginsburg’s the Energizer Bunny’
Pondering a shocking turn of events such as a justice’s death or resignation this year made Levey look beyond 2020.
“Who would Trump or Biden nominate if they win the election? Given Ginsburg’s age (87), there’s likely to be at least one vacancy in the next four years,” Levey pointed out, adding, “Ginsburg’s the Energizer Bunny, but can she go forever? Breyer is 81. Even Thomas and Alito are no spring chickens at 71 and 70.”
As for lower courts, Trump’s managed to get more than 200 judges confirmed. Severino said of Trump, “He already has put on the bench in four years almost as many appellate judges as Obama did in eight years.”
“On the other hand, Biden and his surrogates will warn that Trump is packing the lower courts,” Levey concluded. “If you listen to the rhetoric on the Left, you would think that Trump had pretty much replaced everyone on the circuit and lower courts – hundreds of judges – with right-wing ideologues. And just that perception on the Left I think is going to make it an issue.”
Biden & Trump Already Superstars When It Comes to How Justices Are Picked
Michael Thielen of the Republican National Lawyers Association pointed out both Joe Biden and Donald Trump are already well-known for what they’ve done to the way justices and judges are picked.
Up until Trump, presidential candidates rarely indicated names of who they might nominate to be judges or Supreme Court justices.
“Then-candidate Trump, by making the unprecedented announcement before the 2016 election of a list from which he would select potential Supreme Court nominees, arguably elevated the judicial issue to another level,” Thielen argued.
He recalled how nervous many Republicans were when Trump, a former Democrat, began rising to the top of the GOP presidential field.
Thielen recalled, “There was a lot of trepidation about then-candidate Trump: how would he govern? Would he be a conservative?”
Then word made the GOP rounds about Trump’s so-called list to fill the deceased Justice Antonin Scalia’s seat. Thielen said it reassured many activists that Trump might not only be a president they could live with, but could fully embrace.
As for Trump’s likely 2020 Democrat opponent, Thielen suggested, “Joe Biden as a senator forever changed the confirmation process for judges in the Senate.”
Biden Began ‘Borking’
It started when Biden chaired the Senate Judiciary Committee confirmation hearings of Judge Robert Bork in 1987.
“Prior to that, confirmation hearings were rather boring affairs,” Thielen explained. Then came the Bork hearing, led by Biden. “Senate Democrats portrayed Bork as this fascist figure that was going to destroy the fabric of America.”
The harsh attacks worked and the Senate rejected his nomination. It even persuaded dictionaries to list “bork” as a new verb.
As Webster’s defines it, “to attack or defeat a nominee or candidate for public office unfairly through an organized campaign of harsh public criticism or vilification.”
Thielen pointed out the public saw Biden and fellow Democrat senators bork another prominent conservative judge during hearings for Court nominee Clarence Thomas. Thomas was ultimately confirmed, but not before the Democrats bloodied him after Anita Hill accused him of sexual harassment.
What Biden Did to Bork & Thomas, Today’s Dems Did to Kavanaugh
“The hearing became a circus, at the top of the news every night, and the playbook that Biden invented was used once again years later against Brett Kavanaugh,” Thielen recalled.
He concluded, “So in a very real sense, Biden started the ugliness we have in judicial confirmations, and in a very real way, made them a top issue in politics.”
Severino sees the issues of the judicial branch and politics up close as head of the activist organization Judicial Crisis Network.
She shared how liberal (or Leftist) groups have called for picking judges and justices a top issue in the 2020 race, although many of the Democrat presidential candidates appeared leery.
Why Some Dems Worry This Issue May Be Too Hot
“You had groups on the Left like Demand Justice, some of the well-funded activist groups who think ‘We need to make judges huge; we need to make this the biggest issue and get Democrats talking about this,’” Severino shared. “And then you had the wanna-be nominees, who were running as fast as humanly possible from this issue.”
She expanded on that thought, saying, “The candidates themselves seemed to sense that this is an issue that is very fraught for Democrats, I think partly because you have those big money interests trying to push them further and further to the Left on this and so many other issues.”
Severino compared Trump’s 2016 list to the one list of potential judicial picks that has come from the Left.
“His list of potential Supreme Court nominees was replete with people who had a long history on the federal bench and in state Supreme Courts with long resumes not just as lawyers, but as judges. So you knew what their approach to the law was.”
No Judges on Their Judges’ List
Regarding the list put out by the Left-leaning Demand Justice group, she said, “It was 32 would-be judges long, but the funny part is it wasn’t even judges. There were only eight of those 32 who even had judicial experience. They were looking for people who fit different demographic groups and that fit different interest groups within the Left coalition.”
Severino believes that’s not the will of the American people, saying, “They want judges who will be faithful to the rule of law, faithful to the Constitution as it was originally written, faithful to the laws as they have been passed, not what I wish they would have been or what I think they should be in a perfect world.”
As for Biden himself, he hasn’t produced any list of potential judicial picks, but has indicated at least twice he’d nominate a black woman for the high court.
Severino spoke of another interesting trend: the intimidation of justices. She recalled the New York case now before the Supreme Court involving the Second Amendment right to bear arms and some Senate Democrats’ threat to use congressional power to choose justices.
“You had people like Senator (Sheldon) Whitehouse (D-Rhode Island) and some of his fellow senators issuing an amicus brief that effectively threatened that if the Court did not come down in a conclusion that they agreed with, that they would consider legislation that would pack the Court,” she said.
COVID-19 Might Inadvertently Throw Hot Social Issues Before the Voters
Levey and Severino agreed that the coronavirus having slowed up the Court for several weeks could thrust some of this term’s hottest issues closer to the November election.
FOR CBN NEWS CONTINUING COVERAGE ON COVID-19, CLICK HERE.
“However we see the Court come down on these issues, from guns to abortion to religious freedom – some of which are going to be argued as late as May this year,” Severino explained, “it is something that will be fresh on the American people’s mind.”
Levey concurred, saying, “There’s a higher-than-usual number of hot-button cultural issues that are going to be settled in late June or – who knows? – it may go into July…so right before the election. So that means there’s going to be a bunch of decisions that could well become campaign issues.”
He listed, “We have the DACA/immigration case, the Louisiana abortion case, the New York gun case, the LGBT discrimination cases, a couple of religious freedom cases.”
Immigration, abortion, gun restrictions, gay and transgender rights, and religious liberty can all be hot button issues on their own. Imagine an election where just-decided Supreme Court cases could push them all together all at once in front of the voting public.