The Trump administration last week refreshed its list of potential nominees to the Supreme Court, just in time for remarks by White House counsel Don McGahn to a lawyer’s convention of the Federalist Society.
There is no vacancy on the court. The oldest justice, 84-year-old Ruth Bader Ginsburg, who famously (and injudiciously) called Trump a “faker” last year, shows no signs of retiring. It’s possible that Justice Anthony M. Kennedy, 81, also will stick around for a while. So that makes the addition of five names to a previously published list look like a publicity stunt.
But is it sinister or unethical? Not really.
It’s worth remembering how the idea of a Supreme Court shortlist began. To put it mildly, there was a lot of concern during the campaign – and not just among conservatives – about the sort of person Trump might install on the nation’s highest court if he were elected. Would he tap a crony or business associate or even some white-maned guy he met on the golf course who looked the part? (Or maybe Fox News commentator “Judge” Jeanine Pirro?)
So, to establish his bona fides, Trump released a list of potential Supreme Court nominees and later expanded it; Neil M. Gorsuch, his eventual choice to succeed the late Justice Antonin Scalia, was on the supplemental list.
The people whose names appeared on the list – all but one of them sitting judges – were generally well qualified, and (not surprisingly) conservative. The five names added last week include Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit, a conservative star who has been talked about as a Supreme Court possibility for years, and Judge Amy Coney Barrett of the U.S. 7th Circuit Court of Appeals in Chicago, who was confirmed just last month.
In including Barrett on the list, the administration may be trolling Senate Democrats, who questioned the former Notre Dame Law School professor and mother of seven about how her Catholicism might affect her rulings. Sen. Dianne Feinstein was widely criticized for saying to Barrett that “the dogma lives loudly within you.”
One objection to the existence of a shortlist is that it might tempt those whose names appear on it to “audition” for Trump by ruling in ways that would boost their chances of a vacancy did open up. But the same temptation would exist even in the absence of such a list.
The more substantial argument against the list, in its previous and current versions, is that it represents Trump’s “outsourcing” of judicial selection to the Federalist Society and the Heritage Foundation. This is a popular liberal talking point.
In his remarks to the Federalists, McGahn had some fun with this accusation. As Politico reported, he told the group that “opponents of judicial nominees frequently claim the president has outsourced his selection of judges. That is completely false. I’ve been a member of the Federalist Society since law school — still am. So, frankly, it seems like it’s been insourced.”
But McGahn added that “seeking advice from Leonard Leo and many members of the Federalist Society is not outsourcing the judicial selection process. The fact is we all share the same vision of the judicial role, and we welcome input from many sources.”
This seems right to me. The Federalist Society isn’t a sinister cabal, any more than its liberal alternative the American Constitution Society is. For better or worse, these groups represent opposing legal philosophies and also function as talent-spotters for the federal courts. A Republican president is likely to choose Supreme Court nominees who would be highly regarded by the former, while a Democratic president will lean toward nominees who would please the latter. (I wrote about the connection between the court and these groups here.) Trump may be more deferential to outside legal advisors than, say, a President Ted Cruz would be; but the Federalist Society would be pleased with Cruz’s appointments too.
You can lament this sort of polarization and its effect on the Supreme Court’s reputation for impartiality. But it’s a fact of life, and it didn’t begin with Trump.