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Conservative ire with Supreme Court threatens Trump's coalition

A Republican Party long unified around the goal of filling the federal courts with conservative judges has been shaken by recent Supreme Court decisions.
Image: President Donald Trump returns to the White House.
President Donald Trump returns to the White House.Brendan Smialowski / AFP - Getty Images file

WASHINGTON — A Republican Party long unified around the goal of filling the federal courts with conservative judges has been shaken by a series of disappointing Supreme Court decisions in recent weeks. And some Republicans are now worried that the issue has lost some of its political potency and is sucking energy out of the party ahead of a critical election.

Conservatives of all stripes — from evangelical voters to Senate Majority Leader Mitch McConnell — have bridged internal divisions in part with a focus on judicial nominees, especially under President Donald Trump, who has overseen a transformation of the federal judiciary.

But some Republicans and their allies are beginning to question whether they are getting the results they sought. And pressure is mounting on the president to convince religious voters that he would nominate justices more conservative than the two — Brett Kavanaugh and Neil Gorsuch — he’s already placed on the high court.

The recent decisions by the Supreme Court on abortion, LGBTQ rights and Native American land rights have left some conservatives dispirited and deflated as judges appointed by Republican presidents, including Trump, joined reliably liberal justices.

“This term has brought it home that religious conservatives just can’t trust the establishment to pick these judges,” Sen. Josh Hawley, R-Mo., told NBC News in an interview.

And Hawley warned that the courts are a “vital” issue for religious voters, saying it's “probably undeniable” that this just-ended Supreme Court term is affecting voter enthusiasm heading into November.

Polls have already indicated that evangelical support for the president is softening, a worrying trend for the party's 2020 prospects that have already dimmed according to recent state and national polling.

Mike Davis, a former top aide to Sen. Chuck Grassley, R-Iowa, who led the confirmation battle over Kavanaugh and founded the Article III Project, which supports Trump's judicial nominees, said conservatives need to realize the record-setting gains they've made in placing judges at all levels of the federal judiciary.

“Everybody needs to take a deep breath," he said. "While there may be a case here or there that disappoints, this is very much a conservative court and the major accomplishment of the Trump presidency."

Even Trump railed against his own judges after the court ruled Thursday that he would have to hand his financial records to federal prosecutors from the Southern District of New York, tweeting that the courts have given “broad deference” to past presidents “BUT NOT ME!”

As the president fumes, the White House understands the need to appease the usually enthusiastic voters who propelled him to victory in 2016, so Trump plans to double down on the issue of the Supreme Court and use the issue as a “rallying cry” in the campaign. His message will be “to reaffirm the need for him to appoint even more conservative judges in a second term,” according to a White House official.

“Making sure we have strict Constitutionalists on the Court is a top priority of the president as well as his supporters,” the official said.

Religious conservative voters are essential to the president and the Republican coalition, and more than one-quarter of Trump supporters overall in 2016 said the Supreme Court was their most important issue, according to exit polls.

Polls now show that Trump's support among evangelicals, his most reliable voting bloc, is softening. While he still enjoys 72 percent approval, according to a Pew Research Center poll from last month, that is a decrease of 6 percent from April.

The president will also draw a contrast with former Vice President Joe Biden, the presumptive Democratic presidential nominee, the White House official said, noting that Biden has said he would undo certain rulings that the president views as protecting religious freedoms.

“I think the president in the last couple months has sabotaged his electoral chances,” Erick Erickson, a conservative radio host and writer, said, because of his handling of the coronavirus and his stoking of racial divisions. “But the Supreme Court hasn’t helped him either.”

Conservatives have been angry at Roberts since he upheld the Affordable Care Act, and their suspicion of him has only exacerbated in the subsequent years.

This term, Roberts upheld a Louisiana abortion rights case, June aMedical Services v. Russo, and agreed in Bostock v. Clayton County, Ga., that firing a person for sexual orientation violates the Civil Rights Act of 1964.

It’s not just Roberts, however. Many religious conservatives are also are upset with Gorsuch and even Kavanaugh, although to a much lesser extent.

Gorsuch wrote the majority opinion in the LGBTQ case, a decision conservatives say is a blatant rewriting of the law from the bench and one that veers far from conservative judicial philosophy of originalism.

And neither Kavanaugh nor Gorsuch signed onto Justice Clarence Thomas’ expansive dissent criticizing what he called the court’s consistent overreach on abortion in the Louisiana case, leaving conservatives to question if Gorsuch and Kavanaugh would overturn Roe v. Wade if given the chance.

Josh Hammer, opinion editor of Newsweek and counsel of the socially conservative First Liberty Institute, said that in 2016 conservatives who were skeptical of Trump were guaranteed that he would appoint sufficiently conservative judges.

“We were told it was different, a well-oiled machine,” Hammer said. “But it’s the same old crap over and over again. I think conservatives are rightfully fed up with it.”

Hawley gave a fiery speech on the Senate floor last month arguing that the Republican establishment hasn’t upheld its end of the bargain with the religious right.

“The bargain is that you go along with the party establishment, you support their policies and priorities — or at least keep your mouth shut about it — and in return the establishment will put some judges on the bench who supposedly will protect your constitutional rights to freedom of worship, to freedom of exercise,” Hawley said.

Hawley said he’s told the president that he needs to redouble his efforts on choosing more conservative justices and that religious conservatives must be in on the judicial vetting process.

“We need to scrub this process from top to bottom and recommit ourselves to a constitutionalist on the bench,” Hawley told NBC News.

Tony Perkins, president of the Family Research Council, said that it had been “a mistake” to nominate Gorsuch because of the lack of proof of his conservative bona fides.

“There can’t be any question marks on the nominees,” Perkins said. The approach should be “verify, then we must trust.”

“There’s got to be a record," he said.

Evangelical voters, he said, “invested a lot of time, a lot of resources” into electing Trump and “if people are going to make that kind of sacrifice” the president needs to deliver.

The White House appears to be trying.

The White House is developing a new list of potential Supreme Court nominees with input from top conservative legal scholars and legal advisers within the White House.” The official also noted that Trump is looking for judges who are “in the model of Antonin Scalia,” something the president said himself in 2016.

But some conservatives are increasingly skeptical.

Vice President Mike Pence tweeted from his personal account that “disappointing decisions” by the Supreme Court makes clear that “we need more Conservative justices on the U.S. Supreme Court” with the hashtag #fourmoreyears.

Hammer said a member of a group text chain shared the Pence’s tweet “sarcastically.”

“There’s a reluctance to take that sort of things seriously at this point considering how frequently we feel we’ve been burned,” he said.