A Liberal Legal Movement Is Stirring at Last – The New Republic

Demand Justices list evokes a similar set of prospective Supreme Court nominees released by Trump in the fall of 2016.

Demand Justices list evokes a similar set of prospective Supreme Court nominees released by Donald Trump in the fall of 2016. But the differences are more illuminating than the similarities. For one, Trumps list arose in a starkly different political context. As a candidate, the president broke with GOP orthodoxy on multiple fronts. He denounced free-trade agreements in favor of tariffs and protectionism, castigated past Republican leaders for entangling the U.S. in overseas wars, and pledged to reject cuts to Social Security, Medicare, and Medicaid. Trump, unlike Marco Rubio or Ted Cruz, wasnt a product of the conservative establishment. At one point in his life, he was a pro-choice Democrat.

Even as rank-and-file GOP voters largely flocked to Trumps banner, conservative elites and donors saw danger. They had spent four decades building a movement to reshape the federal judiciary in their own image, nurturing a cadre of originalist lawyers and jurists to serve in it. Antonin Scalias sudden death in 2016 threatened to upend that project. If Hillary Clinton had won, her nominee to replace him would have almost certainly given the courts liberals their first five-justice majority since the 1960s. And even if Trump somehow won, conservative legal figures worried that his ideological flexibility and self-professed willingness to strike deals would leave them empty-handed.

Trumps 2016 shortlists amounted to a Faustian bargain of sorts between him and the conservative legal movement. In exchange for their support and influence, he would pledge to use the lists as a guide when naming future Supreme Court justices. For Trump, it was an easy deal to make. He had already promised to appoint judges in Scalias mold and often warned his supporters of Clintons potential nominees. In practical terms, this arrangementgave some conservatives adegree of cover when endorsing him. Texas Senator Ted Cruz, who had pointedly refused to back Trump at the partys convention that summer, used the list to justify his endorsement in September.

These internal dynamics arent really at play for liberals. There is no real fear that Elizabeth Warren, Joe Biden, or Bernie Sanders would name someone to Justice Stephen Breyers right to the high court if given the chance. There is also currently no Supreme Court vacancy to force the issue to the top of the national agenda. And as BuzzFeeds Zoe Tillman noted last month, there used to be a fundamental difference in how the two parties approached the subject. Democratic candidates and voters tended to focus on the issues that come before the court, such as abortion, gun control, and LGBT rights. Republicans, by comparison, typically focus on control of the courts as both an end and a means.

That gap is fading fast in the Trump era. Thanks to Justices Neil Gorsuch and Brett Kavanaugh, there is now a reliable conservative majority on the Supreme Court for the first time in more than a half-century, and it will likely persist for at least a generation. That majority owes its existence to a fractious sequence of events: Mitch McConnells blockade of Merrick Garland, Trumps victory despite losing the popular vote, and Kavanaughs corrosive confirmation battle. As a result, Democratic presidential candidates are now openly weighing court-packing as a potential remedy to a Supreme Court that they increasingly view as illegitimate. (Ive previously argued against that option and proposed a healthier solution.)

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A Liberal Legal Movement Is Stirring at Last - The New Republic