President Trump’s new Supreme Court shortlist is expected to include additions with connections to Justice Clarence Thomas and may serve as an overture to social conservatives who feel jilted by recent Supreme Court decisions.
Mr. Trump’s innovative use of a shortlist of Supreme Court candidates helped seal the deal with skeptical voters in 2016 who wanted a judicial conservative to replace the late Justice Antonin Scalia. In 2020, Mr. Trump is refreshing his list without an existing vacancy but with an eye toward his base if another prominent justice soon exits.
Efforts to clear a path for Justice Thomas to leave on his own terms and be replaced with a similar judge are already underway. Ahead of the updated list’s anticipated revelation this week, a Twitter account with the handle @JusticeThomas, which has been dormant for all of Mr. Trump’s presidency, has suddenly become active.
Controlled by the right-leaning Judicial Crisis Network, the account began posting messages and videos late last month designed to define Justice Thomas’ legacy if he leaves in the coming year. JCN President Carrie Severino said Tuesday that her group is not pressuring Justice Thomas to leave, is not anticipating his exit, and is wanting to celebrate his jurisprudence.
The Heritage Foundation’s John Malcolm, who had input in Mr. Trump’s previous Supreme Court shortlists, recently developed another shortlist featuring several new faces that have connections to Justice Thomas. Mr. Malcolm would like to see several former Thomas clerks-turned-federal judges added to the list, including Judges Gregory Katsas of the D.C. Circuit, Neomi Rao of the D.C. Circuit and James Ho of 5th U.S. Circuit.
Mr. Malcolm said he was not thinking of Justice Thomas’ retiring when formulating his 2020 list, but he said it is no surprise that top candidates for any coming Supreme Court vacancy would have spent their formative years learning from Justice Thomas.
Mr. Malcolm said he prizes judges like Justice Thomas who rule without fear of what the New York Times editorial board will say about them.
“I value people who have a conservative philosophy when it comes to judging … and people who have a backbone,” he said Tuesday. “I don’t want people who are going to change to accommodate the Georgetown cocktail circuit.”
White House chief of staff Mark Meadows told reporters gathered at the White House on Tuesday that he is excited about the forthcoming list, which he said is waiting on the president’s signoff.
Previous shortlisters such as Judges Amy Coney Barrett of the 7th U.S. Circuit and Amul Thapar of the 6th U.S. Circuit remain popular with Mr. Trump’s fans and are seen as front-runners for any future vacancy. Other judges that conservative court-watchers are keeping an eye on for future vacancies include Judges Barbara Lagoa and Elizabeth Branch, both of the 11th Circuit.
While previous versions of the Supreme Court shortlists included candidates with reputations for ruling against the administrative state, the coming list may include candidates that make social conservatives feel far more comfortable.
Trump-appointed Justice Neil M. Gorsuch’s 2020 ruling opinion in Bostock v. Clayton County, Georgia, that recognized LGBT rights in the Civil Rights Act rankled some social conservatives in the president’s base. Chief Justice John G. Roberts’ swing voting with liberals on controversial issues involving immigration and the Obama-era DACA program has antagonized even more Trump supporters.
Mike Davis, founder of the Article III Project that advocates for Mr. Trump’s judicial appointments, said the president should look to leverage his overhaul of the federal judiciary in formulating the new list.
“The transformation of the federal judiciary is President Trump’s biggest accomplishment in his first term,” Mr. Davis said. “Trump’s three Supreme Court lists were a key unifier and rallying point for conservatives in 2016 and 2018, and so the president should do the same thing for 2020.”
If the past is any guide, Mr. Trump may stray from his shortlist if provided the opportunity to fill another Supreme Court vacancy. Neither of Mr. Trump’s Supreme Court appointments, Justice Gorsuch and Justice Brett M. Kavanaugh, were included on Mr. Trump’s first shortlist as a presidential candidate four years ago.
Democratic presidential nominee Joseph R. Biden has given few clues about whom he would nominate to fill a Supreme Court vacancy if elected. Mr. Biden said in June he was putting together a list of Black women candidates for the Supreme Court, and liberal judicial advocacy group Demand Justice has published a short list it hopes Democrats will adopt.
• Ryan Lovelace can be reached at rlovelace@washingtontimes.com.
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