As the Supreme Court hands his administration successive defeats at the same time his political standing craters, President Donald Trump has begun to raise both publicly and privately the potential boon another nomination to the panel this year might provide.
It’s an alluring prospect Trump believes could galvanize both his loyal base but also provide an opportunity to improve his standing among those voters whose support he is now hemorrhaging, people familiar with Trump’s thinking said.
That includes women, who Trump believes might be swayed if he nominates a female justice. Trump’s backing among women has waned as he adopts a hardline stance on racial matters and largely ignores the coronavirus pandemic. Trump has also suggested older voters might appreciate efforts to solidify the court’s conservative leaning for another generation, believing that group is focused on the court as an election issue.
The President has long cast a potential third Supreme Court nomination as rationale for his reelection. But as the court’s term ends, Trump has begun musing at how a more immediate vacancy may help improve his weakened political standing in the months before November’s election.
“We have two justices of the Supreme Court – Justice Gorsuch, Justice Kavanaugh, they’re great,” Trump told supporters at his rally in Tulsa earlier this month. “We have two and we could get a few more. Yeah. We could get a few.”
It’s considered unlikely that members of the court’s liberal wing – including its two oldest justices, Ruth Bader Ginsburg and Stephen Breyer – would retire while Trump remains in office. That has led to speculation surrounding the two oldest Republican appointees, Clarence Thomas and Samuel Alito – though any hint of their future plans remains closely held.
Trump has long touted his two Supreme Court nominations – along with efforts to reshape the federal judiciary through lower court nominations – as a landmark achievement of his first term. Even for Republicans who disdain Trump’s behavior and question his fitness for office, the judicial efforts have provided a silver lining and, at least for some, reason to maintain their support. This month, Trump marked 200 appointments to the federal bench, a massive number that far exceeds his predecessor.
Yet at least at the Supreme Court, the payoff for Trump’s effort hasn’t been clear cut. As Chief Justice John Roberts sides with liberal justices on immigration, LGBTQ rights and abortion, the issues conservatives had hoped would face new reckoning by Trump’s picks have gone in another direction.
Monday’s decision striking down abortion restrictions in Louisiana was perhaps the strongest signal yet that efforts to force the reconsideration of divisive cultural issues would perhaps be more difficult than some conservatives once hoped.
Trump has cast the decisions as a personal rebuke – “Do you get the impression that the Supreme Court doesn’t like me?” he asked his Twitter followers earlier this month – and has pledged to provide another list of conservative jurists he would consider for the high court if elected to another term.
That is almost certainly likely to include Amy Coney Barrett, the federal appeals court judge who has appeared on Trump’s previous lists and was a runner-up in his two previous nomination contests. If nominated and confirmed, she would become the fourth woman on the court and the only sitting female justice nominated by a Republican. In conversations about the Supreme Court, Trump has said that nominating a female justice could help improve his standing among moderate white women, among whom support for Trump is eroding, according to people familiar with the matter.
While this month’s rulings on immigration, abortion and LGBTQ rights were disappointing for conservatives, they have not proved overly concerning to the President, according to people who have spoken to him about the issue. Instead, Trump has privately suggested there is a political upside in the losses: bolstering his argument for another four years in office, when more Supreme Court retirements are all but inevitable.
“So far we’re not doing too well,” he said in an interview with the Christian Broadcasting Network last week. “We’ve had a lot of losses with a court that was supposed to be in our favor. This is just to show what it means: you’ll probably have a couple of more judges in the next four years. It could even be more than that, could be three or four. If you have a radical left group of judges, religion, I think, will be almost wiped out at America.”
Still, Trump’s muted response to a ruling that extended workplace protections to LGBTQ Americans was reflective of the White House’s general wariness at speaking out too forcefully on a matter where views have shifted dramatically over the past decade. Trump said only he would “live with” the decision.
That one of his own appointees, Justice Neil Gorsuch, ruled against his administration in the case seemed more troubling to Trump than the decision itself, according to people familiar with his reaction.
“I was surprised,” Trump said of Gorsuch’s position in the interview with CBN. Trump has not forgotten that during his nomination process, Gorsuch was critical of the President’s attacks on the judiciary. That caused Trump to question his loyalty and, at one point, ask whether he could withdraw his name from consideration.
An election-year Supreme Court vacancy would electrify the still-nascent presidential campaign, with Democrats likely insisting Senate Majority Leader Mitch McConnell adhere to the same terms he established in 2016, when he prevented Merrick Garland, then-President Barack Obama’s nominee to replace the late Antonin Scalia, from being considered, saying whomever was elected should be responsible for filling the opening.
McConnell said in February that, despite his position four years ago, the GOP-led Senate would fill a vacancy this year, arguing the situation is different now because because the Senate and the White House are controlled by the same party
Republican voters have long been motivated by the Supreme Court in a way Democrats have not. Trump has seized on the issue, claiming his rival Joe Biden would nominate radical judges out of step with the country.
“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives,” Trump tweeted shortly after a decision was handed down rejecting his attempt to end the DACA program. “We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”
Biden, meanwhile, has said that he would nominate a black woman to the Supreme Court but hasn’t offered the same type of list Trump has promised.
As the court concludes its term, both Trump and close watchers of the panel have watched for any clues of impending retirements.
As President, Trump has cultivated a relationship with Clarence Thomas, who turned 72 last week and is the court’s most senior associate justice. He has invited Thomas and his wife Ginni to join him and the First Lady for dinner in the White House residence and has sent birthday wishes in past years. The Thomases were invited to a state dinner held in honor of Australia last September. An increasing number of former law clerks to Thomas have been appointed by Trump to top US courts.
Early last year, the President indulged Ginni Thomas and other right-wing activists for an hour-long meeting in the White House Roosevelt Room, listening as they railed against issues like women serving in the military and transgender rights, according to people familiar with the meeting.
The group, and Thomas in particular, also raised concerns that some Trump supporters she had recommended for administration posts were being blocked by Trump’s aides. Before and since, Thomas has issued memos to the White House with recommendations on which administration staffers could be disloyal and names of potential replacements.
When Trump celebrated his impeachment acquittal in the East Room in February, Ginni Thomas was one of his invited guests.
Even to some inside the White House, the relationship between Trump and the Thomases has been the subject of speculation. Some aides have privately wondered whether Trump’s courtship of the pair was motivated by some political ends, like orchestrating a conveniently-timed retirement.
Others close to the President insist that is not the case and say Trump has merely sought to develop relationships with prominent conservatives in Washington, a town in which he knew few people before arriving as President in 2017.
In either case, Thomas has recently found himself newly prominent on the court and some close to him have tamped down on speculation he may be preparing to retire. After decades of near-silence from the bench, he regularly asked questions as arguments were conducted on a conference call this spring. A documentary about his life – directed by Michael Pack, a conservative filmmaker tapped by Trump to lead the US Agency for Global Media – recently aired on PBS.
The second-oldest conservative-leaning justice, Samuel Alito, has served on the court for fourteen years and turned 70 this year. His unhappiness with the court’s direction has been palpable in recent dissents, which have drawn upon unusually strong language to make his points.