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Brian Fallon Trump's Supreme Court list includes Tom Cotton and Ted Cruz. In 2020, this may backfire.

Trump has blown Republicans’ political cover by yet again saying the quiet part out loud.
Image: President Donald Trump descends from Air Force One as lightning strikes near Joint Base Andrews on Aug. 28, 2020.
President Donald Trump descends from Air Force One as lightning strikes near Joint Base Andrews on Aug. 28, 2020.Doug Mills / NYT via Redux file

On Wednesday, President Donald Trump announced he would expand his Supreme Court shortlist to include 20 additional far-right lawyers — including several GOP politicians. It felt a lot like a replay of his winning strategy from four years ago.

But if his shortlist release was a masterstroke in 2016, this time around, it feels more like a display of Trump’s political weakness. The timing of announcement, and the list’s inclusion of polarizing figures such as Sen. Ted Cruz, shows he has all but given up on winning over swing voters — and is willing to risk a backlash that may put him and Senate Republicans in an even deeper hole going forward.

In the past, Republicans have cloaked their interest in the court in vague, rhetorical homages to originalism and textualism.

Trump and Senate Republicans may come to regret his ploy. As with so much, Trump has blown Republicans’ political cover by saying the quiet part out loud. In the past, Republicans have cloaked their interest in the court in vague, rhetorical homages to originalism and textualism. But this shortlist is the clearest distillation yet of what they actually mean by that: people like Ted Cruz and Tom Cotton who want to rip away health care from millions and overturn Roe v. Wade.

In 2016, Trump rode Republicans’ desire to control the Supreme Court to the White House. He released his Supreme Court shortlist in May 2016, before he was officially his party’s nominee, to unite his party and assuage social conservatives who were distrustful of Trump as the party standard-bearer.

But unlike in 2016, Trump is not releasing his Supreme Court shortlist in the primary phase of the campaign. He is the sitting president, just about two months out from the general election. Now is the time when he should be seeking to expand his coalition of support by by reassuring voters who have been cool to him. Recent polls in swing states like Pennsylvania show Trump trailing Vice President Joe Biden among suburban voters there by 19 points — a stark reversal from 2016, when Trump beat Hillary Clinton among those same voters by 8 points.

That Trump would issue such an incendiary Supreme Court list in the closing weeks tells us a lot about what his priority is right now. It is not to win over these kinds of persuadable voters; it’s to try to further gin up enthusiasm among his base. Trump, it seems, hopes to juice turnout among his core supporters just enough in some swing states to squeak out an Electoral College win without ever attempting to win over the majority of the country that disapproves of the job he is doing.

If anything, the extreme views of the people on this list should repel moderates and energize progressives.

For instance, Trump’s first two nominees to the Supreme Court (Neil Gorsuch and Brett Kavanaugh) demurred when asked about their position on Roe v. Wade during their confirmation process, calling it a “precedent” and saying little else. They did this because even though outlawing abortion is the driving impulse behind the conservative movement’s fixation on the courts, it is far too unpopular a position with the general public for any nominee to dare support it explicitly. Poll after poll in recent years show that around 70 percent of the country believes Roe should not be overturned.

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But the newest additions to Trump’s shortlist have no such scruples. Moments after Trump added Sen. Tom Cotton to his shortlist, Cotton tweeted, “It’s time for Roe v. Wade to go.” This type of red-meat statement will certainly go over with conservative audiences, but it is not a message that Cotton’s colleagues in tough Senate races will want to run on.

The risk for Republicans is similar on the issue of health care. This fall, the Trump administration will appear before the Supreme Court to seek an end to the Affordable Care Act. This move could result in eventually kicking millions of Americans off their insurance and, according to estimates by the Center for American Progress, ripping away protections from around 135 million people with pre-existing conditions.

Past Republican Supreme Court nominees would have refused to publicly speculate about how they would rule on this case. But there’s no need to wonder what a nominee like Cruz thinks about the Affordable Care Act — he’s spent nearly a decade of his life fighting to repeal it. Republicans lost the 2018 election in large part because voters disagreed with their goal of taking health care coverage from millions. Now every Republican running for Senate will have to answer whether they would vote to allow Cruz undermine health care access in the middle of a pandemic.

In states like Maine, where Sen. Susan Collins is already on the ropes due to votes like her confirmation of Kavanaugh, Trump’s extreme shortlist puts Senate Republicans in a familiar spot: risk angering their pro-Trump base or alienate moderate voters opposed to his agenda.

In 2016, Trump’s Supreme Court strategy was all gain and no pain in the sense that he could trust it would rally conservatives without galvanizing Democratic voters who did not seem to prioritize the Supreme Court at election time. But the political situation has changed in four years.

Now, more Democratic than Republican voters tell pollsters they consider the Supreme Court a "very important" issue in the upcoming election. According to the Pew Research Center, in June 2016, 70 percent of Trump supporters said as much, compared to 62 percent of Clinton supporters. In July and August 2020, 66 percent of Biden supporters said that, compared to 61 percent of Trump supporters. Two other recent polls showed similar results.

This shift is, in part, due to Democratic concerns about the health of Justice Ruth Bader Ginsburg and the likelihood that Trump’s re-election could give him the chance to choose her successor. But the shift is also of Trump’s own making. His nomination of Kavanaugh was a watershed moment for progressives. Two years after his bruising confirmation on a near party-line vote, Kavanaugh remains the least-liked figure on the court.

Yet in Cruz, Trump may have managed to find the one conservative lawyer as deeply disliked among Democrats as Kavanaugh. As someone whose job it is to get progressives to care more about the court, I could not imagine a better gift than Trump threatening to replace a venerable figure like Ginsburg with Cruz.

In the end, Trump may have energized some die-hard Republicans with this list, but it’s telling that he’s scrambling to do that at the cost of mobilizing Democrats and turning off independents just weeks before the election. In 2016, the Supreme Court was one of the keys to Trump’s success, but four years later, leaning this far into the issue could very well boomerang on him.

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