It was Donald Trump who launched the pernicious practice of identify potential Supreme Court nominees in May 2016, when he was the presumptive Republican nominee, with a list curated by Leonard Leo of the Federalist Society and designed to calm the anxieties of the party’s evangelical Christian base.
This worked brilliantly for Trump. The list, released because the high court had a vacant seat created by the death of Justice Antonin Scalia, arguably helped secure his election. But he also set a terrible precedent, using judges as pawns in a political campaign and implicitly encouraging sitting judges to issue rulings that would improve their chances of being nominated to higher courts.
Now Ramaswamy is leading Trump by two, maybe even three. First, the 37-year-old biotech entrepreneur issued his handpicked list of nine Supreme Court nominees much earlier in the process. The contenders include Republican Sens. Mike Lee (Utah) and Ted Cruz (Texas), and Judge James C. Ho of the ultra-conservative United States Court of Appeals for the Fifth Circuit.
Second, instead of stopping at the top post, Ramaswamy identified seven other judges for promotion to federal appeals courts, including US District Judge Matthew Kacsmaryk, the Texas judge who, among other terrible sentences, blocked the use of the abortion drug mifepristone.
Third, so that voters don’t have to guess what Ramaswamy finds most attractive in these potential candidates, he offers a practical guide to his conservative, culture-warrior credentials, from attacking trans rights to fighting pandemic-era restrictions to dismantling the administrative state.
Thus, Ho: “Opinion of the author’s lower court in Dobbs, which was subsequently followed by the Supreme Court. He rejected the illegal closings and closing of churches during the pandemic in Spell Against Edwards.”
Or, Lawrence VanDyke, US Court of Appeals for the Ninth Circuit: “Protected women’s pageants from transgender activism in Green vs. Miss USA. Protected Second Amendment rights during the pandemic in McDougall v. Ventura County.”
Or, Kathryn Mizelle, US District Court for the Middle District of Florida, for a motion of appeal: “Struck down the federal mask mandate on air travel Health Freedom Def. Background against Biden. Defended Florida’s right to ban sanctuary cities in City of South Miami v. Governor.”
Ramaswamy’s move follows that of a rival Republican candidate, Florida Gov. Ron DeSantis, who suggested last month that Trump’s Supreme Court picks weren’t conservative enough.
“As president, I will nominate and appoint justices to the Supreme Court in the mold of Justice Clarence Thomas and Justice Samuel Alito,” DeSantis promised the Faith and Freedom Coalition.
When conservative radio host and contributing Post columnist Hugh Hewitt asked DeSantis if his Supreme Court picks would be like Trump’s “three home runs,” DeSantis offered“Well, actually, I’d say we’d do better than that.”
While “I respect the three picks” — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — “none of those three are on the same level” as Thomas and Alito, DeSantis observed, calling that pairing the “standard of gold”. ”
On one level, this is an early stage stance. Ramaswamy’s list is likely to be little known and not long remembered. But his list and DeSantis’ promise underscore the degree to which the future of the Supreme Court is at stake in 2024 and the continuing, even greater, desire among conservative activists to harness the court in the service of their ideological and partisan goals. .
A Republican president would likely have a chance to entrench conservative control of the court for another generation. With a Republican in the White House, Thomas, 75, and Alito, 73, may be inclined to retire to pave the way for much younger conservative successors, cementing a conservative supermajority for decades to come.
And how conservative? Normally, it would take some effort to replace Thomas and Alito with judges further to the right. But Ramaswamy’s and DeSantis’ comments also highlight how much pressure there would be on a Republican president, especially if Republicans manage to regain control of the Senate, to go as far to the right as possible. In some conservative circles, the emerging criticism of the high court is that he is not conservative enough.
“Today, critics attack this Supreme Court as the most conservative court in modern history. Quite true”, law professor Josh Blackman wrote this week on the Volokh conspiracy blog. “But it could have been much, much worse for progressives if President Trump really had nominated judges in the mold of Justices Scalia, Thomas, and Alito. … Overall, progressives should be thankful for President Trump’s not-so-conservative SCOTUS picks.”
Gratitude is not the first emotion that comes to mind on this court. Time and time again, and certainly in the most important cases, Trump’s picks have proven to be solid, trustworthy conservatives, not soft centrists.
But I agree with the point that it could have been worse from Blackman, which also means I worry about what another Republican president could mean, be it Trump or one of his rivals. We might find ourselves looking back at Trump’s first three nominees and thinking that the team seems moderate by comparison.