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Tanzina Vega: I'm Tanzina Vega. Welcome back to The Takeaway. Last week, President Trump released his shortlist of Supreme Court candidates and while there isn't currently an empty seat on the Supreme Court, the list of 20 conservative nominees is an attempt by the President to bolster support among his base in advance of the November election. Who's on the list? Zoe Tillman is a legal reporter with BuzzFeed News. Welcome back to The Takeaway, Zoe.
Zoe Tillman: Thanks for having me.
Tanzina: Ian Millhiser is the senior correspondent with Vox. Ian, great to have you.
Ian Millhiser: Good to be here. Thanks so much.
Tanzina: Ian, a lot of President Trump's Supreme Court nominees so far have been vetted by an organization called the Federalist Society. Did we see that with this shortlist too?
Ian: I think that's very likely. When you look at this list, it aligns with the preferences of very sophisticated conservative lawyers. The thing that strikes me about Trump's judicial selection operation overall is it is the least Trumpy part of the entire Trump White House. He has basically delegated it to groups like the Federalist Society and that means that the goonish incompetence that typifies this White House is not a part of his judicial selection process. It's very, very, very conservative, but it's he is picking the same sorts of people that you would expect from say, a President Cruz or President Rubio.
Tanzina: Zoe, to Ian's point there, is the President even the one doing the picking, or are there folks who are in charge of making these selections themselves and creating this shortlist?
Zoe: Historically, the White House Counsel's Office has been deeply involved in this process, not just under the Trump administration, but generally in a White House, you would expect to see that. White House, the White House Counsel's Office will come up with names, they'll be in touch with the Justice Department. As Ian was saying, we know that there are outside groups that are also involved in advising the President and especially names like Leonard Leo keep coming up every few years.
He was the former senior official with the Federalist Society and now runs his own conservative advocacy group. He's said, "When the White House calls me, I'm happy to offer advice." He's very tapped into the conservative legal network. It's a mix of the officials that you would expect to see in any administration and as well as these outside groups that have created a pipeline for years for young conservative lawyers to rise up through the ranks and end up on the federal bench.
Tanzina: Ian, to Zoe's point, she mentioned Leonard Leo, I'm wondering folks on the list right now, the shortlist, are among them, Judge James Ho. What do we know about Judge Ho?
Ian: Wow. Judge Ho, he's a smart guy, but he has spent his short time on the bench. He's been there less than three years, writing opinions that-- There's no other way to put it. They read like they were written to own the Libs. He's attacked campaign finance law, he's attacked Obamacare, he's attacked abortion. He's done it using rhetoric, which I guess, the polite way to put it is not typical of what you would see in a judicial opinion. Very, very conservative guy, very smart guy, but someone who is very aggressively trying to use the courts in a fairly partisan and ideological way.
Tanzina: Ian, is that the tone or the profile essentially of what the rest of the nominees or potential candidates for Supreme Court on this shortlist are? Are they similar to Judge Ho in terms of their political leanings?
Ian: I think that nearly anyone on the list would be very similar to Judge Ho ideologically. I think that tonally, Judge Ho is a bit of an outlier, as I said, rhetorically, he's a bit excessive and he also tends to go looking for issues that aren't present in the case like he took a gratuitous swipe at Obamacare in a campaign finance case. Some judges wouldn't engage in that kind of rhetorical access, but I think that ideologically, Judge Ho believes the same things as nearly everyone else on the list. He's just a bit more outspoken about it.
Tanzina: Zoe, when we look at how President Trump in one term so far has reshaped the American judicial system, particularly, not just at the Supreme Court, but beyond the Supreme Court, what do we see?
Zoe: It's been one of the most resounding successes for this administration at least in the eyes of the conservative movement and the Republican Party. He's had more than 200 judges confirmed. Record-breaking, I think it's at 53 federal appeals court judges confirmed, which is almost as many as President Obama had confirmed in eight years in the office. The thing to remember is these are lifetime appointments to the federal bench.
This all outlasts a Trump administration, even if it's two terms by potentially decades and I think that you see that reflected in the list in that some of the names are very young. These are smart, accomplished lawyers, but who have been confirmed to be seats in their 30s, their mid-30s. One of them, Allison Rushing, was confirmed, she was 36 and she was not only Trump's youngest nominee at the time, but I think one of the youngest, if not the youngest federal judges in the country.
If not only a short-term success in that these are judges that Republicans can look to to support a conservative political agenda now, but these are judges that will continue to do this for not just two or three decades but potentially four, five decades to come.
Tanzina: Ian, I wonder at least as we end this segment right now if you can tell us a little bit about why was it that Obama had so much trouble, not just at the Supreme Court, but also confirming judges for lower courts. Was it that his administration made less proposals or did they just get blocked more frequently?
Ian: Yes. 2014, Democrats had a bad year and Republicans took over the Senate. Once Republicans gained control of the Senate, they put a near blockade on Obama's appellate nominees. I think only two appellate judges nominated by Obama were confirmed in the final two years of the Obama presidency. At the same time that they were preventing Merrick Garland, Obama's Supreme Court nominee from being confirmed, they were also preventing a whole range of judges one tear down from the Supreme Court from being confirmed and that means that-- The reason why Trump's numbers are so large is because Trump hasn't just got to a point of people to fill all the vacancies that arose under his presidency. He's also gotten to appoint people to fill all the vacancies that Obama should have filled or at least nearly all, but two of the vacancies that Obama should have filled in the last two years of his presidency.
Tanzina: Zoe, what's the strategy for President Trump releasing this list now? There are no vacancies on the Supreme Court right now.
Zoe: Right, the message is really, the court has a conservative majority, but perhaps it's not conservative enough. We've seen Trump attacking Chief Justice John Roberts for decisions over the past two years siding with the court's liberal wing against the administration, whether it was on an attempt to add a citizenship question to the 2020 Census form, the administration's attempt to end the Deferred Action for Childhood Arrivals program, the fight over getting subpoenas for the President's financial records.
He's tweeted and not just him, but also Vice President Pence and other Republicans have criticized the Chief Justice who is by no means a liberal and is absolutely a part of the court's conservative wing, but the message is, if Joe Biden wins, this is going to undo Trump's legacy on the courts because Joe Biden not only will get to fill whatever vacancies come next, but there is some chatter on the left about a plan to, for instance, try to add seats to the Supreme Court so Republicans and Trump can say, "They're trying to pack the court, this is a threat to what we're trying to do here."
Tanzina: I want to get Ian's thoughts on this too before we wrap because to that point, I feel as though-- You said there's some chatter on the Democrat side about what they're going to do, but they've had a couple of years to get it together.
Ian: I think there's certainly going to be a list of candidates. The thing about Trump's list is that there aren't really that many secrets there. You ask anyone who's on the Harvard Federalist Society, who the 12 judges are that they'd most like to clock for, that's the shortlist for Republicans. You ask a Democrat, ACS is the name of the Federalist Society equivalent for liberals. You ask a member of the ACS at Harvard who the 12 judges that they'd most want to clock for, that's the Democratic shortlist, but it is true that Democrats have historically not had the infrastructure that Republicans have had. You're starting to see some of that organizational infrastructure being built.
Not just organizations like ACS that I mentioned. There's an organization called Demand Justice which is a multimillion-dollar operation that can now run ads on the judiciary. There's a very young organization called the People's Parity Project that's doing some really interesting work trying to set young liberals up for the bench. That infrastructure is starting to be built by Democrats. It is newer infrastructure. The Federalist Society has been around since the early eighties.
I think it's going to take a little while for Democrats to catch up, but what we are seeing now which we haven't seen in the past is I think the Democrats are starting to realize, "Wow, we are back on our heels here, this is a problem," and they're starting to build the permanent infrastructure, organizational infrastructure that Republicans have had for a very long time
Tanzina: Ian Millhiser is a senior correspondent with Vox and Zoe Tillman is a legal reporter with BuzzFeed News. Thanks to you both for joining me.
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