What President Trump's Supreme Court Would Look Like
The Republican candidate successfully wooed Ted Cruz by releasing an expanded list of potential justices.
How many Supreme Court nominees does Donald Trump need?
Twenty-one, apparently. Trump’s campaign released a list of 10 more potential nominees to the nation’s highest court on Friday—only five months after he floated a list of 11 jurists from which he pledged to appoint. With only nine seats on the Court, Trump now has enough possible candidates to fill each seat at least twice.
Listing one’s picks for the Supreme Court before an election is an unprecedented move for American presidential candidates. While each administration typically keeps a shortlist of potential nominees should a vacancy arise, those names are kept close to their chest. But Trump’s unusual disclosure is driven more by political necessity than transparency.
One of Trump’s strengths during the primary campaign was his ideological plasticity, allowing him to outmaneuver his opponents on immigration and trade. But that same flexibility also stoked fear among conservatives who now fear losing their four-decade majority on the Court following Justice Antonin Scalia’s death in February. Trump’s past support for abortion rights and gun-control measure only added to their anxiety about maintaining a conservative bench.
Like his previous list, Trump’s latest prospects come from an assortment of backgrounds. Four of the ten names offered serve on state supreme courts: Edward Mansfield of Iowa, Keith Blackwell of Georgia, and Charles Canady of Florida, as well as Robert Young, currently Michigan’s chief justice.
Another four of them are federal judges with lifetime appointments. Neil Gorsuch and Timothy Tymkovich sit on the Tenth Circuit Court of Appeals, while Amul Thapar and Federico Moreno serve on federal district courts in Kentucky and Florida, respectively. Additionally, Margaret Ryan began a 15-year term on the Armed Forces Court of Appeals in 2006.
On the campaign trail, Trump frequently invokes his desire to appoint conservative judges in Scalia’s image. The prospects’ records seem to largely follow that mold. Tymkovich wrote the Tenth Circuit’s opinion in Burwell v. Hobby Lobby, which allowed religious exemptions from the Affordable Care Act’s contraceptive mandate for certain for-profit corporations. Canady, a former congressman, introduced the first version of the federal ban of “partial-birth” abortions in 1995. Thapar struck down parts of Kentucky’s rules against political participation by judges and judicial candidates earlier this year.
But the most notable name on the list is Utah Senator Mike Lee, a staunch conservative with a civil-libertarian streak. As both a former clerk for Justice Samuel Alito and a former federal prosecutor, Lee’s name is occasionally mentioned as a possible Supreme Court nominee for hypothetical Republican presidents. His brother Thomas, a judge on Utah’s supreme court, was also on Trump’s list in May.
Lee, who has declined to endorse Trump so far, is also at odds with the Republican nominee on multiple issues, including religious freedom and fidelity to the Constitution. (On Friday, he spurned the idea of accepting Trump’s nomination and said he “already has the job he wants.”)
“We can go through the fact that he’s made statements that some have identified correctly as religiously intolerant,” Lee said in a June interview. “We can get into the fact that he’s wildly unpopular in my state, in part because my state consists of people who are members of a religious minority church, people who were ordered exterminated by the governor of Missouri in 1838. And statements like that make them nervous.”
During the primaries, Lee also backed his close friend Texas Senator Ted Cruz, whom Trump habitually denigrated on the campaign trail. If Lee's inclusion was intended as an olive branch for Ted Cruz, it seemed to work: On Friday afternoon, Cruz finally endorsed Donald Trump, citing it as one of six reasons for his decision.
“For some time, I have been seeking greater specificity on this issue, and today the Trump campaign provided that, releasing a very strong list of potential Supreme Court nominees — including Sen. Mike Lee, who would make an extraordinary justice — and making an explicit commitment to nominate only from that list,” Cruz said in a statement on Facebook. “This commitment matters, and it provides a serious reason for voters to choose to support Trump.”