On Sept. 9, President Donald Trump unveiled his much-anticipated new Supreme Court nominee “list.”
A whopping 20 names long, the list includes figures from all walks of legal/political life: federal appellate court judges, federal district court judges, sitting U.S. senators, current and former Trump administration figures, current state officers, and a former U.S. solicitor general.
With the 24 viable names remaining from the three previous “lists”—the first two of which were released during the 2016 presidential campaign and were crucial to ensuring religious conservative voter turnout for Trump—there are now 44 candidates being publicly floated for the next Supreme Court vacancy.
The latest list, an election year attempt to secure conservative turnout amidst a deeply disappointing—perhaps crisis-inducing—recent Supreme Court term, is a positive development for a forceful, full-spectrum, nonlibertarian conservatism. Some of the potential nominees from the list who are most likely to be considered seriously for the next Court vacancy—Judges James Ho (full disclosure: my former boss) and Gregory Katsas, in particular—are truly outstanding. And the fact that other no-holds-barred social conservatives, such as Sen. Josh Hawley (R-Mo.) and Judge Kyle Duncan, were included at all ought to be reassuring to traditionalist conservatives who prioritize the timeless substantive goals of republican self-governance over the fetishization of a morally denuded proceduralism.
Conservatives, leery as ever following last term’s devastating cases on issues as wide-ranging as abortion, immigration, Title VII, and whether half of Oklahoma is actually part of Oklahoma, now have 44 names to actively vet and consider.
True, a more truncated and meaningfully targeted list would have been better to salve social conservative wounds, but the fact is that those on the right most upset with the list are the sclerotic old guard who steered the legal conservative movement toward this crisis point. And especially when considering some of the outstanding holdovers from the first three lists—Judges William Pryor, Amy Coney Barrett, and so forth—the reality is there are many people Trump has named who, if nominated and confirmed to the Supreme Court, would make substantial headway in reviving the right to life, defending religious institutions, securing national sovereignty, and promoting the common good of the nation, communities, and families.
As disappointing as the last Court term was, we have still come a very long way from Harriet Miers.
All of which leads us to an obvious question: Where on earth is Democratic presidential nominee Joe Biden’s Supreme Court nominee list? Alas, that obvious question has an answer that is just as obvious: It’s not coming. And it’s not coming for the extraordinarily simple reason that Biden, Sen. Kamala Harris (D-Calif.), and Democratic Party grandees all know that such a list would scare the living daylights out of the American people.
In 2016, between one-fifth and one-quarter of the electorate, according to exit polling, cited the Supreme Court as their number one issue on which to vote. Of that judiciary-centric slice of the voting electorate, Trump outpaced his rival, Hillary Clinton, by a huge margin of 15 points. The Supreme Court is clearly a losing political issue for Democrats and the American left. After all, it is the side that has consistently lost major cases and has had its substantive moralistic prerogatives democratically removed under the risible pretext of black-robed constitutionalization that stands the most to gain from institutionally reclaiming Alexander Hamilton’s “least dangerous” branch.
Put more simply: The progressive left’s relentless, century-plus-long crusade to twist the Constitution beyond recognition and embolden a sycophantic legal academy and judicial oligarchy willing to implement its vision via judicial fiat has, as a blunt political matter, reached the point of diminishing marginal returns. This is no small irony.
And there’s more. On issue after issue, the median American—law-abiding, patriotic, religious, or at least friendly to religion—would be repulsed by the radicalization a Biden Supreme Court list would entail. We would see judges, academics, and career bureaucrats who have dedicated their careers to stamping out religion, wrecking America’s territorial sovereignty, stripping Americans of their individual right to keep and bear arms, and codifying the bloodiest and most reckless of abortion regimes.
A Biden Supreme Court list, in short, would confirm the worst of Americans’ fears about what sort of dystopia a Democratic presidency, armed with the levers of judicial branch nomination powers, would inflict upon We the People. Far better for the Democrats to hide their agenda and try to dupe Americans; candor and transparency will not redound to their benefit.
Biden’s decision not to release a Supreme Court nominee list similar to Trump’s is, as a matter of principle, cowardly. But as a prudential matter, it is likely the wiser political move—which itself is immensely telling.