President Donald Trump’s grip on the Republican Party is now so tight that it’s easy to forget the unease with which most of its establishment viewed him in 2015 and 2016. Some of that unease sprang from his racism, sexism, and authoritarianism, which Republican elites feared might imperil the GOP’s electoral chances. But much of it was ideological. Trump, after all, was not a movement conservative or a longtime Republican official. Prior to his reinvention as a presidential candidate, Trump had largely left the impression that he was a pro-choice Democrat, insofar as he left a discernible ideological trail at all.
Part of the story of 2016 is how Trump vanquished once-rising stars like Marco Rubio and Ted Cruz by winning primaries, securing an insurmountable delegate lead, and energizing his own wing of the party. The other part is how he made implicit and explicit bargains with American conservatism’s various factions, pledging to help them achieve their long-sought goals if they helped pave his road to power or at least did not try to obstruct it. The most overt deal was struck with the conservative legal movement, which had spent a half-century working to remake the federal courts in its own image.
Trump has no apparent interest in constitutional interpretation or the makeup of the federal judiciary beyond his own self-interest. At one point in the primaries, he said his sister Maryanne Trump Barry, a federal judge at the time, would make a “phenomenal” Supreme Court justice, then backtracked and claimed he meant it jokingly. By September 2016, Trump had released two shortlists of conservative jurists he’d appoint to the Supreme Court, winning over some high-profile Republicans who had eschewed him.
“For some time, I have been seeking greater specificity on this issue, and today the Trump campaign provided that, releasing a very strong list of potential Supreme Court nominees—including Sen. Mike Lee, who would make an extraordinary justice—and making an explicit commitment to nominate only from that list,” Texas Senator Ted Cruz said in a statement announcing his endorsement of Trump. “This commitment matters, and it provides a serious reason for voters to choose to support Trump.”
There are lessons here for Joe Biden and American progressives as the former vice president prepares to become the Democratic Party’s standard-bearer in November. Biden is a well-established figure within his own party, but his past stances on issues like criminal justice have drawn considerable criticism from the left. The Biden campaign spent the last few months on outreach efforts like policy task forces with Vermont Senator Bernie Sanders, in an effort to build credibility among left-leaning voters. Biden himself is also under pressure to select a woman of color as his running mate to strengthen his electoral coalition.
The vice presidential pick will be a critical one given Biden’s age and the occasional report that he may consider not running for a second term if he wins. But vice presidents usually play a modest role in day-to-day governance. Releasing a shortlist of attorney general nominees would be a far more insightful glimpse into a potential Biden presidency. It would provide wary and unenthusiastic progressives with a tangible sign that he would govern with their interests in mind. And it would allow Biden to set up a potent contrast with the Trump administration and its current approach to the Justice Department.
I noted in March that the attorney general would likely be the most consequential Cabinet pick made by the next Democratic president. Whoever Biden chooses would immediately confront a host of complex matters: moving immigration policy away from draconian Trump-era practices, expanding civil rights enforcement and federal scrutiny of police abuses, investigating abuses of power and corruption in the previous administration, and more. Biden’s pick for attorney general would also have to rebuild public confidence in the Justice Department in the wake of Attorney General Bill Barr, under whose leadership it largely functioned as a heavily armed version of the White House Counsel’s Office.
Under federal election law, it’s illegal for presidential candidates to offer appointments in exchange for political support. The statute in question is written broadly enough that it could be legally questionable for Biden to announce a specific person for a specific position before the election. As Vox’s Dylan Matthews noted in 2016, it’s unfortunate that the law effectively prevents presidential candidates from naming a “shadow Cabinet,” akin to those found in Canada, Britain, and other Westminster countries. That would give voters a much greater insight into how each potential administration would function. Fortunately, Trump’s campaign in 2016 at least showed that a shortlist is on a much firmer legal footing.
There is already speculation about who Biden would choose to lead the Justice Department. A number of state attorneys general rose to national prominence in the Trump years, including California’s Xavier Becerra, New York’s Tish James, and Minnesota’s Keith Ellison. James Carville, a longtime Clinton associate, urged Biden to choose Massachusetts Senator Elizabeth Warren as the nation’s top law enforcement official for her anti-corruption bona fides. More recently, Biden has tapped Julián Castro—who previously served as Obama’s secretary of housing and urban development—as a policy adviser on police reform. Castro distinguished himself in the 2020 Democratic primaries for his comprehensive policy proposals on the matter.
Most importantly for Biden, the right slate of attorney general nominees would allow him to distance himself even further from the criminal-justice stances that haunted him during the 2020 primaries. After the unrest in Ferguson, Missouri, and following other high-profile police killings in 2014 and 2015, the Obama Justice Department took a more aggressive stance in pursuing civil rights cases against abusive police departments and implementing consent decrees to reform them. Jeff Sessions, Trump’s first choice for attorney general, worked hard to unwind those reforms in the first years of Trump’s presidency and tilt the playing field back toward law enforcement. George Floyd’s killing last month, and the widespread protests that followed, highlighted how disastrous that decision turned out to be. With a shortlist of reform-minded potential choices, Biden could clearly demonstrate how his administration would do things differently.
The civil unrest has also underscored the stakes in other ways. Before Trump walked to St. John’s Church in Washington, D.C., on Monday, it was Barr who ordered peaceful protesters to be cleared from Lafayette Park with tear gas and flash-bang grenades so his boss could make the short walk for a photo op. (Barr later claimed the two events were unrelated.) Secretary of Defense Mark Esper reportedly resisted using active-duty soldiers to quell protests in the capital. But Barr has eagerly acted as a governor-general of sorts for the nation’s restless capital, bringing a small army of unmarked federal agents from around the country into D.C. and setting up military-style cordons on some of its streets.
It wouldn’t be hard for Biden to find an attorney general with a greater commitment to American democracy and rule of law than Barr. But that contrast is still worth making. A danger under any illiberal regime is normalization, in which what was once unthinkable slowly transforms into what is now expected. Securing favorable prosecutions for presidential allies and using prison riot guards to police American protesters in the nation’s capital shouldn’t fall under any attorney general’s duties. Biden has the opportunity to show that he—and whoever he would choose to lead the Justice Department next—would do things differently.