Republican presidential front-runner Donald Trump, in an apparent bid to placate conservatives who fear that he could appoint an insufficiently ideological justice if elected president, plans to release a list of 5–10 names sometime in the next week. He says that, if given the opportunity to name a Supreme Court justice, he will limit his selection to the names on that list.
At a press conference on Monday, Trump also revealed an unusual detail about how he is determining which names should be on the list. “Heritage Foundation and others are working on” the list,” according to Trump.
Heritage is a think tank known for its stridently conservative views and its unorthodox approach to mathematics. They oppose marriage equality, defend discrimination against LGBT Americans, and they have a surprisingly long history of reversing their own stances on health policy when doing so is useful to opponents of Obamacare. Their former chief “economist” is an ex-newspaper columnist and anti-tax activist with no doctorate in economics.
In 2013, Heritage released a widely criticized report claiming that immigration reform would cost an eye-popping $6.3 trillion. One of the co-authors of that report resigned four days later after news broke that “his graduate dissertation on immigration was premised on the idea that Latinos were less intelligent than whites.” Heritage also released projections predicting that the Bush tax cuts would result in significant job growth. Their projections proved less than accurate:
So Heritage is an odd place for a presidential candidate to seek advice on any topic. And Trump’s decision to effectively delegate the task of drawing up a list of potential Supreme Court nominees to Heritage and similar organizations is especially unusual given when he is doing so.
There’s nothing unusual about presidents consulting with outside groups before making a Supreme Court nomination. White House officials met with representatives from many groups before President Obama settled on Chief Judge Merrick Garland as his choice to fill the existing Supreme Court vacancy. President George W. Bush maintained an especially close relationship with four outside advisers on Supreme Court nominations, including former Attorney General Edwin Meese — a Heritage fellow.
It’s one thing, however, for a sitting president to seek such advice while in office. Trump, by contrast, is currently fighting to win enough delegates to secure the Republican Party nomination. As such, he has an incentive to win friends at conservative institutions and groups like Heritage have leverage to push Trump to the right. Although a sitting president might ignore especially radical advice from an outside adviser, a primary candidate who does so risks throwing support to one of their opponents.
Indeed, there are already signs that advocates eager to move the Supreme Court to the right have shaped Trump’s thinking regarding Supreme Court nominees. In February, Trump named Judges William Pryor and Diane Sykes as potential Supreme Court nominees if he is elected president. Both Pryor and Sykes have very conservative records on issues such as voter suppression, religion, and reproductive freedom. Judge Sykes wrote an opinion holding that anti-gay groups have a constitutional right to receive government subsidies — even if they violate prohibitions on discrimination. The Supreme Court later rejected Sykes’ views.