Trump Is Running on the Courts Again. Should Biden Do the Same?

Trump Is Running on the Courts Again. Should Biden Do the Same?

President Trump this month celebrated the confirmation of his 200th lifetime appointment to the federal bench, outpacing his predecessor by dozens through three-and-a-half years.

Campaign supporters of Mr. Trump and Senator Mitch McConnell, the Republican majority leader, have been urged to buy T-shirts saluting the two men as “Back-to-Back Supreme Court Champs,” their faces rendered in white silhouette with “Gorsuch” and “Kavanaugh” etched on the sleeves.

And four years after the battle over a court vacancy helped deliver Mr. Trump to the White House, the president hopes to keep his job by playing the hits: He has pledged to produce an updated roster of would-be justices to galvanize the right before November, warning that his Democratic opponent, Joseph R. Biden Jr., would nominate “a radical lefty” as a slate of major cases returns the judiciary to the political fore.

“Based on decisions being rendered now, this list is more important than ever before,” Mr. Trump wrote on Twitter. “VOTE 2020!”

Progressives have suggested that Mr. Biden, the former vice president, could prompt excitement by releasing his own list of preferred judges. Some activists have urged him to embrace a proposal to expand the size of the Supreme Court.

Mr. Biden has done neither, though he has promised to nominate a black woman to the court and said that the judiciary was “the single most important reason” that his wife, Jill, wanted him to run in 2020.

John Anzalone, a pollster and adviser for Mr. Biden, said that much of the modern Democratic electorate plainly grasped the significance of the courts. A Suffolk University/USA Today poll in April found that Democrats were slightly more likely than Republicans to call the Supreme Court one of the most important issues affecting their vote.

“I do think that women — college-educated women, suburban women — are without a doubt a much bigger part of our coalition,” Mr. Anzalone said. “And they’re much more awake to the ramifications of replacing a Ruth Bader Ginsburg. That is real.”

Democrats had been bracing for possible disappointment in the Louisiana abortion case, among other decisions pending before the end of this court term.

But two high-profile rulings had already come as a pleasant surprise to them: one holding that a landmark civil rights law protects L.G.B.T.Q. employees from workplace discrimination and another preventing Mr. Trump from immediately proceeding with plans to end a program shielding young immigrants from deportation.

While welcoming the outcomes, activists have advised Democrats to beware a conservative majority bearing gifts.

“The court’s not evil 100 percent of the time,” Meagan Hatcher-Mays, the director of democracy policy at Indivisible, said before Monday’s decision. “But they’re evil, like, 94 percent of the time.”

Such successes can, paradoxically, register as something of a narrative complication for those arguing that the court is stacked against the left.

Brian Fallon, the executive director of Demand Justice, a progressive group, suggested that Chief Justice John G. Roberts Jr. understood as much — and was steering the court accordingly.

“These rulings are enough to convince a lot of people on the left that they should continue to play within the system and not offend sitting federal judges by calling them out as overly political,” he said. “In some sense, that is the exact game that Roberts is playing: to side with the liberals in just enough cases so the public misses the larger trend of this court’s rightward swerve.”

The chief justice has nonetheless angered many Republicans who appraise his tenure as a failure, recalling him siding with the court’s liberal wing in cases challenging core provisions of the Affordable Care Act. In the abortion ruling on Monday, he voted with the liberal justices but did not adopt their reasoning, saying that deference to precedent compelled him instead.

Some critics of Mr. Roberts hold high office: “Do you get the impression that the Supreme Court doesn’t like me?” Mr. Trump wrote on Twitter this month.

Conservatives say that, if anything, the Roberts era has demonstrated the need for Mr. Trump to fill vacancies for another four years.

“Frustration with the chief justice and concern about the direction the courts were going was part of what galvanized conservatives in the first place to elect someone like Trump,” said Carrie Severino, president of the conservative Judicial Crisis Network.

By prizing “courage” in addition to credentials, Ms. Severino said, Mr. Trump’s approach “is almost designed to avoid a future John Roberts,” whom she accused of operating with politics in mind — in some ways echoing the charge of his progressive skeptics.


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