A possible consequence of a Trump second term: Justice Ted Cruz?

What better way to get progressive voters up in arms than by telling them a Trump victory opens the door to Ted Cruz possibly joining the Supreme Court?
Image: FCC commissioners testify before U.S. Congress in Washington
Sen. Ted Cruz during a hearing on June 24, 2020.Jonathan Newton / Pool via Reuters
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By Steve Benen

There are no current vacancies on the U.S. Supreme Court, but over the next few years, that's likely to change. Of the nine justices on the bench, four are over the age of 70 -- and two of the four are in their 80s.

With this in mind, the future of the high court may very well be shaped by the winner of the 2020 presidential election, and with that in mind, Donald Trump wants voters to know the names on his short list.

President Donald Trump released a new list of Supreme Court prospects Wednesday, pledging to pick a nominee from it if he has the opportunity to fill another vacancy. The announcement adds 20 names to those that Trump has already mentioned as potential picks, all of whom he said would be "jurists in the mold of Justices Antonin Scalia, Clarence Thomas and Samuel Alito."

The president read each of the 20 names at White House event yesterday, and there are some doozies on the list. James Ho from the 5th Circuit Court of Appeals, for example, has developed a reputation as a far-right partisan; Lawrence VanDyke from the 9th Circuit hasn't yet been a judge for a full year and received a "not qualified" rating from the American Bar Association; Carlos Muñiz from Florida's state Supreme Court has an unfortunate background; and Allison Jones Rushing from the 4th Circuit, who was confirmed to the bench for the first time just last year and is only 38 years old.

But what made the list unusual was Trump's willingness to put a bunch of politicians on it: among the elected Republicans the president is considering for the U.S. Supreme Court are Sen. Ted Cruz (R-Texas), Sen. Tom Cotton (R-Ark.), Sen. Josh Hawley (R-Mo.), and Kentucky Attorney General Daniel Cameron (R).

Would Trump, in a second term, actually nominate a GOP official for the high court? Your guess is as good as mine, but the fact that the president is sending this message to voters this close to the election could have some consequences.

To my great frustration, Democrats are largely ignoring the federal judiciary as a 2020 issue. Joe Biden did not mention it at all during his convention speech, for example, and he wasn't alone: I heard few references to the courts throughout the recent four-day affair. Republicans, on the other hand, repeatedly emphasized the judiciary.

It's likely that Democratic pollsters found that the party's voters aren't especially motivated by this message, so Democratic leaders emphasized other issues. I think that's a mistake -- the party's voters are far more likely to care if they're encouraged to do so -- but Democrats have a plan and they're sticking to it.

But what if Trump changes the game by sparking progressive interest that otherwise doesn't exist?

By and large, the vast majority of Americans are unfamiliar with the names of individual lower-court judges, so when Trump listed a series of prospective justices, the names of assorted appellate-level jurists were meaningless to 99% of voters.

But once the president started naming politicians, it was qualitatively different. Democrats aren't making much of an effort to get their base to care about the future of the Supreme Court, but what if Trump does that job for them? What better way to get progressive voters up in arms than by telling them a Trump victory in 2020 opens the door to Ted Cruz possibly becoming a high court justice for the rest of his life?