But there’s a side effect to what he’s done that could translate to long-term legislative benefits if the GOP presidential front-runner ends up in the Oval Office.
Nearly everyone on Trump’s list has close ties to Republican senators. As Politico reported, one potential nominee is a close acquaintance of Sen. John Cornyn (R-Texas). Another is a former professor of Sen. Cory Gardner (R-Colo.). Another is a longtime favorite of Sen. Chuck Grassley (R-Iowa). Thomas Lee, a Utah Supreme Court justice, is the brother of Sen. Mike Lee (R-Utah.).
In life under President Trump, it’s not hard to imagine that these senators would consider the prospect of seeing their old friend, mentor or brother appointed to the Supreme Court (or, conversely, removed from Trump’s list) when weighing the White House’s legislative agenda.
This is precisely why it’s rare to see a presidential candidate release a list of potential Supreme Court nominees before ever getting elected. There’s an ethical dimension to using a sitting judge as barter for something else — even if it just looks that way.
“Half of judicial ethics isn’t impropriety as much as the appearance of impropriety,” said Russell Wheeler, an expert on courts and judicial selection at the Brookings Institution. “It creates the sense of, ‘Maybe they’re trying to curry favor with the president,’ even if it’s not true.”
Of course, it’s all part of the veneer that courts are above politics and that the nomination process to fill court vacancies is apolitical. But Wheeler says he was still shocked by the arrangement Trump came up with.
“It gave me pause,” he said. “The fact is, Mike Lee might be above reproach and his brother may be above reproach, but the very fact that you and I can wonder about that, it creates problems. With Utah, there’s a lot of Mormon Church opposition to Trump. There’s talk that Clinton might be able to swing that very red state. You don’t have to be too bright to figure out what might be going on there.”
Other political observers didn’t think it was as big of a deal, if only because they don’t see the court nomination process as void of political considerations.
“What else is new?” asked Ken Gross, a D.C.-based lawyer who specializes in congressional ethics and the regulation of political activity. “You do things to ingratiate yourself to senators and others to garner their support. I think that that’s an upside for Trump ... It’s politics as usual. You use as much leverage as you can.”
Trump himself may see his Supreme Court nominee list as a political vehicle. Most of his picks hail from swing states or states that Trump would clearly like to put in play as he makes a Rust Belt push in the general election. As Chris Geidner of BuzzFeed pointed out, nearly half of the people on Trump’s list are on state courts, compared to the current composition of the Supreme Court, where three members came from the D.C. Circuit and four were from other federal appeals courts.
There’s another reason to think that politics (yes, politics!) is part of Trump’s Supreme Court thinking. His names were cobbled together with the help of the right-leaning Federalist Society as a means of saying, essentially, that these were the ideological bounds of the acceptable. But since then, Trump has said he would “add to the list” — an addendum that has made his skeptics nervous and given an incentive to other senators to push their personal favorites.
While that may not be the way the public likes to think a Supreme Court seat is filled, some legal observers aren’t surprised it’s playing out this way.
“Pretty much the only thing we know is that he wants to win. So, in that case, whatever strategy works to secure confirmation will be what matters,” said Sarah Binder, a political science professor at George Washington University who focuses on federal judicial matters.
“Does that mean he might dangle a potential nomination of Sen. Lee’s brother to try to induce Lee’s vote on other issues? Or Cornyn’s or Grassley’s for some other favored nominee? Possibly. And would that be unseemly in some way?” she asked. “Presidents and senators make calculations all the time about the price for votes. Is it much different than committing to limiting citrus imports to get a Florida lawmaker’s vote for a trade deal?”
Well, it is a lifetime appointment to the most powerful court in the country.
“I’d say it’s a difference in degree, rather than in kind,” said Binder.
Author: Jennifer Bendery, Sam Stein