President Donald Trump is infusing deliberations over his coming nomination of a new Supreme Court justice with political meaning as he aims to maximize the benefit before Nov. 3 and even secure an electoral backstop should the result be contested.
Even before Justice Ruth Bader Ginsburg’s death last week, the president had tried to use likelihood of more Supreme Court vacancies to his political advantage. Now, as he closes in on a decision on her likely replacement, Trump has used the vacancy to appeal to battleground-state voters and as a rallying cry for his conservative base.
He also is increasingly embracing the high court — which he will have had an outsized hand in reshaping -– as an insurance policy in a close election.
Increases in mail, absentee and early voting brought about by the pandemic have already brought about a flurry of election litigation, and both Trump and Democratic nominee Joe Biden have assembled armies of lawyers to continue the fight once vote-counting begins. Trump has been open about tying his push to name a third justice to the court to a potentially drawn-out court fight to determine who will be sworn in on Jan. 20, 2021.
“I think this will end up in the Supreme Court,” Trump said Wednesday of the election, adding, “And I think it’s very important that we have nine justices.”
It’s a line echoed by Trump allies, including Texas Sen. Ted Cruz, who said Thursday, “I think that threat to challenge the election is one of the real reasons why it is so important that we confirm the Supreme Court nominees, so that there’s a full Supreme Court on the bench to resolve any election challenge.”
Barely six weeks from Election Day, and as millions of Americans are already voting, Trump and his advisers have tried to use the court vacancy to help deliver Trump another term in office.
Supreme Court nominations are never entirely devoid of political considerations, but Trump’s decision has been particularly wrapped up in a charged political moment.
Within hours of Ginsburg’s death, Trump made clear his intention to nominate a woman in her stead, after previously putting two men on the court and as he struggles to mitigate an erosion in support among suburban women.
In discussing his five-person short list, he’s been sure to highlight some from election battlegrounds that he’s aiming to win this fall as much as their jurisprudence.
“I’ve heard incredible things about her,” he said of Florida’s Barbara Lagoa, a day after Ginsburg's death. “I don’t know her. She’s Hispanic and highly respected. Miami. Highly respected.”
In an interview with a Detroit television station, he volunteered that hometown Justice Joan Larsen is “very talented.”
Trump was even considering a meeting with Lagoa this week in Florida, where he plans campaign events. The appellate court judge was confirmed last year by the Senate in a bipartisan vote and has been promoted for the court by GOP Gov. Ron DeSantis and others as a nominee with more across-the-board appeal.
Trump and his aides, though, appear to have set their sights on nominating Judge Amy Coney Barrett of Indiana, who was at the White House twice this week, including for a Monday meeting with Trump.
The staunch conservative’s 2017 confirmation on a party-line vote included allegations that Democrats were attacking her Catholic faith. Trump allies see that as a political windfall for them should Democrats attempt to do so once again. Catholic voters in Pennsylvania, in particular, are viewed as a pivotal demographic in the swing state that Democratic nominee Joe Biden is trying to recapture.
On Wednesday, Vice President Mike Pence defended Barrett when asked whether her affiliation with People of Praise, a charismatic Christian community, would complicate her ability to serve on the high court.
“I must tell you the intolerance expressed during her last confirmation about her Catholic faith I really think was a disservice to the process and a disappointment to millions of Americans,” he told ABC News.
Trump played up the power to make judicial nominations with conservative voters in 2016, when Republicans senators kept open the seat vacated by the death of Justice Antonin Scalia rather than let President Barack Obama fill the opening. Trump's decision to release lists of accomplished conservative jurists for potential elevation to the high court was rewarded by increased enthusiasm among white evangelical voters, many of whom had been resistant to supporting the candidacy of the one-time New York Democrat.
Even before Ginsburg’s death, Trump had done the same in 2020, releasing an additional 20 names he would consider for the court, and encouraging Democrat Joe Biden to do the same.
Biden has resisted that pressure so far, but that hasn’t stopped Trump from trying to sow fear among conservatives about whom the Democrat might nominate.
“So they don’t want to show the judges because the only ones that he can put in are far-left radicals,” Trump said this week.
“If Joe Biden and the Democrats take power, they will pack the Supreme Court with far-left radicals who will unilaterally transform American society far beyond recognition,” Trump said at a rally outside Toledo on Monday. “They will mutilate the law, disfigure the Constitution and impose a socialist vision from the bench that could never pass at the ballot box.”
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