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Ramaswamy’s Supreme Court List Encourages Judicial Grandstanding

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There’s been a lot of talk about the composition of the U.S. Supreme Court becoming a general-election issue after Donald Trump used his promise to engineer the reversal of Roe v. Wade to unite the GOP in 2016 and then the ferocious backlash to that fueled Democratic overperformance in the 2022 midterms. No one will be surprised if partisan activists use hopes and fears about the Supreme Court to turn out voters in 2024.

But we’re beginning to see a pretty unprecedented Supreme Court tactic: candidates scoring points in a presidential nomination contest by sending signals about the kind of jurists they will nominate. First you had Ron DeSantis subtly dissing Trump’s conservative Supreme Court appointees by saying he’d nominate justices in the far-right mold of pre-Trump Supreme Court additions Clarence Thomas and Samuel Alito. And now wunderkind anti-woke crusader Vivek Ramaswamy is raising the stakes considerably with a sweeping offer not only to put hard-core ideologues on the Court but to promote grandstanding extremist district-court judges to more influential appeals-court positions, as the Washington Post reported:

Biotech entrepreneur and Republican presidential hopeful Vivek Ramaswamy on Monday released a list of 16 people he’d nominate to the U.S. Supreme Court or federal appellate courts if he becomes president, making him the first in the party’s field to itemize his possible top judicial appointments …

In an interview, Ramaswamy, 37, said he was releasing the list of possible appointments to show voters where he stood.

“It’s important, when you’re asking voters to select the next president of the United States, that you be as transparent as you can about what you’re going to do,” Ramaswamy said.

In part, Ramaswamy is just following Trump’s precedent; the then-mogul released a list of Supreme Court prospects in May 2016 as part of a successful effort to win over conservatives tempted to subvert his insurgent candidacy. After he won the presidency, Trump kept refining that list with the guidance of the conservative legal wizards of the Federalist Society; the three judges he eventually nominated to the Supreme Court all appeared on one of his lists first.

Ramaswamy’s Supreme Court list raises eyebrows by including well-known ultraconservative Senators Mike Lee and Ted Cruz. You can’t expect primary voters to know a lot about obscure federal judges beloved of the Federalist Society, but they do know Lee and Cruz. If either were to wind up on the Supreme Court, it would be the first time that had happened since Harry Truman put Indiana senator Sherman Minton on the Court in 1949.

But Ramaswamy did something else, too, by naming notorious lower-court judges he’d love to promote. The Post’s Ruth Marcus explained how dangerous a precedent that might set:

Rather than stopping at the top job, Ramaswamy identified seven other judges for promotion to federal appeals courts, including U.S. District Judge Matthew Kacsmaryk, the Texas judge who, among other terrible rulingsblocked the use of abortion drug mifepristone …

Lest voters guess at what Ramaswamy finds most attractive about these potential nominees, he offers a handy guide to their conservative, culture-warrior credentials, from attacking trans rights to combating pandemic-era restrictions to dismantling the administrative state.

If you’re a lower-court judge who’s gotten noticed for attention-grabbing extremist rulings on hot-button issues, even if they were overturned on appeal, you’ve got a good shot at appearing on Ramaswamy’s list, Marcus observes:

Thus, [Fifth Circuit Judge James] Ho: “Authored lower court’s opinion in Dobbs, which the Supreme Court later followed. Rejected unlawful lockdowns, closing churches during the pandemic in Spell v. Edwards …”

Or, Kathryn Mizelle, U.S. District Court for the Middle District of Florida, up for an appellate promotion: “Struck down the federal mask mandate in travel in Health Freedom Def. Fund v. Biden. Defended Florida’s right to ban sanctuary cities in City of South Miami v. Governor.”

If this stunt were to become standard operating procedure for presidential candidates in either party, you’d have a powerful incentive structure for a politicized judiciary in which ambitious young black-robed ideological cheerleaders would send White House prospects valentines from the bench. Indeed, even if such cries for attention didn’t succeed in bootstrapping legal beagles to the higher spheres of the federal judiciary, they might generate influential publishing opportunities, lucrative speaking gigs, and relationships with wealthy and generous fanatics.

Compiling famous-name lists for lifetime appointments is a bad idea whose time should never come.

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Ramaswamy Supreme Court List Promotes Judicial Grandstanding