Trump runs again in court. Should Biden do the same?


President Trump celebrated this month the confirmation of his 200th lifetime appointment at the federal bank, beating his predecessor by dozens in three and a half years.

Supporters of Mr. Trump’s campaign and Senator Mitch McConnell, the Republican majority leader, have been urged to buy T-shirts saluting the two men as “Consecutive Champions of the Supreme Court,” with their faces blank with “Gorsuch” and “Kavanaugh” engraved on the sleeves.

And four years after the battle for a court vacancy helped deliver Mr. Trump to the White House, the president hopes to keep his job interpreting the successes: He has vowed to produce an updated list of potential judges to galvanize the Right before November, warning that his Democratic opponent, Joseph R. Biden Jr., would nominate “a radical left-hander” as a list of important cases returns the judiciary to the political plane.

“Based on the decisions being made now, this list is more important than ever,” Trump wrote on Twitter. “VOTE 2020!”

That message came long before the court’s latest ruling to disappoint conservatives on Monday: a 5-4 decision that reverses a law restricting abortions in Louisiana.

On their own, Democrats have long been outgunned in electoral battles by the courts. 2016 exit polls showed Trump won by double digits among those who called the Supreme Court the “most important factor” in his vote.

Most memorable is that Trump made the novel choice to publish a list of possible candidates, made up of leaders of conservative groups such as the Federalist Society, providing specificity (at least on this issue) of a candidate prone to ideological change.

“It gave certainty to people who didn’t know the president, and I was one of them,” said Penny Nance, executive director of Concerned Women for America, a conservative Christian group. “It was probably problem # 1 when we looked at the poll of what brought conservatives to the polling place in 2016. I think it will certainly be a priority issue in 2020.”

Following polls amid overlapping national crises he’s struggled to corner, Trump seems even more likely to place the courts, an area of ​​unequivocal conservative triumph, at the center of his case for reelection.

Whether Democrats can tap into their own enthusiasm in this regard is both uncertain and potentially critical to electoral fortunes this fall, both in the presidential race and in several competitive Senate contests where Supreme Court votes from Republican incumbents They could feature prominently. (In Maine, Sen. Susan Collins’ support of Judge Brett M. Kavanaugh in 2018 drew large-scale scrutiny, and millions of dollars in donations against her, before she had an official opponent.)

In recent years, seminal moments to mobilize Democrats on matters of the judiciary were not lacking: confirmation by Judge Kavanaugh; the non-confirmation of Judge Merrick B. Garland; the Supreme Court’s refusal in April to extend the term for absentee voting in Wisconsin during a pandemic.

Still, some in the party perceive an asymmetry in the urgency with which many Democratic voters think in court.

“I think its visibility has increased, but I don’t think it moves millions to the polls the way it should,” said Sen. Chris Coons, a Democrat from Delaware and a close ally of Biden. “That is the challenge that lies ahead.”

Progressives have suggested that Biden, the former vice president, could spark excitement by publishing his own list of preferred judges. Some activists have urged him to accept a proposal to expand the size of the Supreme Court.

Biden has not, though he promised to nominate a black woman for the court and said the judiciary was “the most important reason” why his wife, Jill, wanted him to run in 2020.

John Anzalone, pollster and adviser to Mr. Biden, said that much of the modern Democratic constituency clearly understood the importance of the courts. A University of Suffolk / USA Today poll in April found that Democrats were slightly more likely than Republicans to call the Supreme Court one of the most important issues affecting their vote.

“I think women, women with a college education, women from the suburbs, are certainly a much bigger part of our coalition,” Anzalone said. “And they are much more awake to the ramifications of replacing Ruth Bader Ginsburg. This is real.”

Democrats had braced themselves for possible disappointment in the Louisiana abortion case, among other pending decisions before the end of this court period.

But two high-profile decisions had already pleasantly surprised them: one that maintains that a landmark civil rights law protects LGBTQ employees from discrimination in the workplace and another that prevents Trump from immediately proceeding with plans to end a program that protects young immigrants from deportation. .

As they greet the results, activists have advised Democrats to beware of a conservative majority that carries gifts.

“The court is not bad 100 percent of the time,” Meagan Hatcher-Mays, director of democratic politics for Indivisible, said before Monday’s decision. “But they are evil, like 94 percent of the time.”

Such successes may, paradoxically, register as a kind of narrative complication for those who argue that the court is stacked against the left.

Brian Fallon, the executive director of Demand Justice, a progressive group, suggested that Chief Justice John G. Roberts Jr. understand this, and directed the court accordingly.

“These decisions are enough to convince many people on the left that they should continue to play within the system and not offend sitting federal judges by calling them too political,” he said. “In a sense, that’s the exact game Roberts is playing: siding with the liberals in enough cases so that the public misses the broader right-wing drift of this court.”

Nonetheless, the chief justice of the Supreme Court angered many Republicans who viewed his tenure as a failure, and remembered it by leaning on the liberal wing of the court in cases that defied the core provisions of the Affordable Care Act. In Monday’s abortion ruling, he voted with the liberal judges, but did not adopt his reasoning, saying that deference to the precedent forced him instead.

Some critics of Mr. Roberts hold high office: “Do you have the impression that the Supreme Court does not like me?” Trump wrote on Twitter this month.

Conservatives say that, if anything, the Roberts era has demonstrated the need for Trump to fill vacancies for another four years.

“Frustration with the Chief Justice and concern about the direction of the courts was part of what prompted conservatives in the first place to choose someone like Trump,” said Carrie Severino, president of the Conservative Judicial Crisis Network .

In valuing “courage” in addition to credentials, Severino said, Trump’s approach “is almost designed to avoid a future John Roberts,” whom he accused of operating with politics in mind, somehow echoing the accusation of your progressive skeptics

He also joined some liberal counterparts in asking Mr. Biden to publish a list of possible nominees.

Many Biden supporters see little need for that step because, unlike Trump in 2016, the former vice president has an extensive record in judicial matters, including a long tenure as chairman of the Senate Judiciary Committee.

Those close to Mr. Biden are seldom eager to think about Anita Hill’s treatment before her committee at confirmation hearings for Judge Clarence Thomas. But others cite her work to defeat Judge Robert H. Bork’s nomination in 1987 as a feat for Democrats, and a tipping point for a chamber that previously had not been inclined to reject a nominee for primarily ideological reasons.

“I don’t think there has been a president, assuming Biden has been elected, knows as much, or has been as involved in the formation of the Supreme Court as Joe Biden,” said Mark Gitenstein, who directed the staff of Mr. Biden during the Bork Fight.

And those who doubted Mr. Biden in 2020, he added, were not the first.

“The irony of the Bork fight is that it is no different than what you are seeing now,” Gitenstein said. “People totally underestimated Biden.”

Giovanni Russonello contributed reporting.

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