GOP Betting Judiciary Record Translates Into Election-Year Wins

Photo by Al Drago/Bloomberg

(Senate Majority Leader Mitch McConnell has prioritized filling judicial vacancies.)

Senate Republicans hope their march to install a record number of President Donald Trump’s judges will shore up support from conservatives dismayed by recent Supreme Court decisions.

The latest confirmation for the influential federal circuit courts was the 200th of the Trump administration, a notable mark in the effort by Trump and Senate Majority Leader Mitch McConnell (R-Ky.) to reshape the judiciary. Nearly 30% of all U.S. circuit court judges joined the bench during Trump’s presidency.

The laser-like focus on confirming judges is intended, in part, to energize a GOP base that McConnell will need as he fights to retain control of the chamber, where his party has a 53-47 majority.

Judges will be as much a motivator in 2020 as they were in 2016 when Trump routinely raised the issue, Carrie Severino, president of the conservative legal organization, Judicial Crisis Network, said in an interview.

“You could be at a rally and you’d start to get into the second hour, and when the energy started to sag all the president would have to do is talk about judges, and suddenly everyone’s on their feet,” she said.

Read More: Trump Hits 200 Judicial Confirmations With Fifth Circuit Pick

The confirmation Wednesday of Cory Wilson to serve on the U.S. Court of Appeals for the Fifth Circuit caps off McConnell’s three-year effort. It came on the heels of the confirmation of Justin Walker, the leader’s own protégé, to serve on the District of Columbia Circuit, the most influential of the appeals courts.

(Photographer: Jonathan Ernst/Reuters/Bloomberg)

Justin Walker at Senate Judiciary Committee confirmation hearing to be a judge on the U.S. Court of Appeals for the D.C. Circuit. The Senate confirmed Walker on June 18.

But the strategy also carries some risk, as GOP senators running in more competitive states may face a backlash over some of the more controversial judicial nominees. There’s also no guarantee that Trump’s judges will rule in favor of conservative priorities.

DACA Decision

Social conservatives were upset with the June 15 Supreme Court decision, written by Trump appointee Neil Gorsuch, that civil rights laws provide workplace protections to gay and transgender employees.

“We were told Gorsuch would save us all. We were told that this judicial strategy was air tight and we didn’t have anything to worry about, and that is patently untrue,” Rachel Bovard, senior director of policy at the Conservative Partnership Institute, said in an interview. “There is severe lack of trust with this going forward, and it undermines that message.”

That frustration was compounded by the June 18 high court ruling written by Chief Justice John Roberts in favor of the Deferred Action for Childhood Arrivals (DACA) program that allows immigrants brought into the U.S. as children to remain in this country. Trump seized on that decision to assure his supporters he will continue fighting for conservative judges.

Read More: Trump Rallies Base Reeling From Court Losses, DACA

Republicans believe they can build on the passions generated by Trump’s Supreme Court picks, particularly his choice of Brett Kavanaugh which galvanized the GOP base in the run-up to the 2018 midterms.

Experts said voters’ interest in lower court picks isn’t nearly as strong, in part because of their lack of awareness of their influence over their lives.

Where Republicans have been successful is in cases linking the lower courts to particular controversies, said Amy Steigerwalt of Georgia State University.

“The Republican party has done a terrific job in tying two particular matters for which there are quite a lot of single issue voters — abortion and guns,” Steigerwalt said in an interview. “The Democrats haven’t made as clear a connection.”

On the Air

Several campaign ads highlighting the Senate’s approval of conservative judges have been running during primary season, according to Advertising Analytics, a firm that tracks political ads.

Former Attorney General Jeff Sessions (R) ran one in his bid for his former Senate seat in Alabama, highlighting the role of conservative judges in heading off the “radical secular left.” Sen. Tom Cotton (R-Ark.) raised the courts in a re-election ad attacking liberals’ “anti-gun agenda,” which said he is “confirming conservative judges who respect our rights.”

Democrats have raised the issue, as well. In Kentucky, one challenger to McConnell, Amy McGrath, made the Supreme Court an issue in a spot in which she says the majority leader “has turned Washington into something we all despise, where budgets and health care and the Supreme Court are held hostage.”

McConnell still has a list of Trump district court nominees to confirm. He also said he would move to fill any Supreme Court vacancy this year even though he blocked consideration of President Barack Obama’s high court nominee Merrick Garland in 2016 arguing the nomination was too close to the election.

Kavanaugh Effect

Kavanaugh has continued to play a large role in 2020, particularly in primary races such as in South Carolina where Senate Judiciary Committee Chairman Lindsey Graham (R) easily held off three challengers.

In a fundraising letter sent on behalf of Graham on the June 9 primary day, McConnell said that without Graham’s “brave stand against the left-wing mob” over sexual assault allegations, Kavanaugh might not be on the Supreme Court.

In states where Trump trails presumptive Democratic presidential nominee Joe Biden, Republicans are saying much less about Kavanaugh. That includes Maine, where Sen. Susan Collins’ (R) vote for Kavanaugh has hurt her popularity in a likely matchup with state House Speaker Sara Gideon (D).

Collins has recently voted against some Trump judges with conservative stances on abortion and the Affordable Care Act. She voted against the Walker and Wilson nominations.

Democrats are planning to take a page out of the GOP’s playbook and link the judiciary to items at the top of their constituents’ concerns: health care and workplace rights. They also are making an issue of Trump judges’ opposition to efforts to boost voting in the minority community through efforts such as mail-in voting and increased polling places.

Liberal activists said Republicans will face criticism on the campaign trail for supporting judges who may back dismantling the Affordable Care Act and its guaranteed coverage for people with pre-existing conditions. This fall the court will hear a lawsuit brought by GOP-led states seeking to invalidate the 2010 health care law.

“Everyday Americans aren’t losing sleep about who sits on the D.C. circuit court of appeals or the Fifth Circuit, but they are losing sleep about whether in the middle of a pandemic they will have health insurance,” Dan Goldberg of the Alliance for Justice’s Action Campaign said in an interview.

To contact the reporter on this story: Nancy Ognanovich in Washington at nognanov@bgov.com

To contact the editors responsible for this story: Bennett Roth at broth@bgov.com; Kyle Trygstad at ktrygstad@bgov.com