Federal Courts and Nominations

Supreme Court now in Trump’s hands

By Lydia Wheeler

President-elect Donald Trump has a chance to radically shift the Supreme Court to the right over the next four years.

Trump will immediately have an opportunity to fill a court vacancy, and three other liberal justices, two of which are in their 80s, could retire on his watch.

While his politics are unpredictable, in an interview with “60 Minutes” on Sunday, Trump signaled that he wants to see Roe v. Wade overturned, arguing that abortion rights should be left up to the states.

“I’m pro-life. The judges will be pro-life,” he said.

Pressed by interviewer Lesley Stahl on what would happen to women unable to get abortions in their states if Roe were overturned, Trump responded that “they’ll perhaps have to go … to another state.”

The ideological balance of the Supreme Court was a big reason why conservatives and evangelicals supported Trump to begin with. From his initial remarks as president-elect, it appears he intends to deliver on the promise he made them to name a true conservative to the bench.

“Republicans in the Senate made the right decision in making this an election issue, and it was a central election issue, and it got people to the polls for him,” said Shannen Coffin, a partner at the D.C. law firm Steptoe & Johnson.

“If he were to turn on that, it’d be a huge betrayal of the expectations he set in the election.”

Trump’s ability to tip the court and his comments on “60 Minutes” have groups on the left panicked after they failed to win confirmation for Merrick Garland, President Obama’s nominee to replace the late Justice Antonin Scalia on the court.

“Unquestionably, the idea that Donald Trump can appoint Supreme Court justices ought to instill the fear of God in every American in the country, both those who voted for him and those who didn’t, because he will appoint individuals, just as his Republican predecessors did, who are hostile to the rights and liberties we Americans have come to accept as basic democratic values,” Nan Aron, president of the Alliance for Justice, told The Hill on Monday.

Aron said she fears that Trump’s Supreme Court appointments could reverse “years of progress” on civil rights, reproductive rights and marriage equality.

“One justice will be able to do that, which is the reason they failed to give Merrick Garland his due. It was to keep the seat open, knowing how critically important that seat is for a Republican president to fill,” Aron said, citing the GOP’s refusal to consider Garland’s nomination.

Seeking to assure the right, Trump during the campaign released a list of 11 judges he would consider naming to the Supreme Court.

The list has now grown to 21, with additions like Sen. Mike Lee (R-Utah) and Amul Thapar, a U.S. District Court judge for the Eastern District of Kentucky.

Conservatives have lauded Trump’s list but have not coalesced around a single name as their top choice.

John Malcolm, director of The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, put out a list of his own and only had two recommendations beyond those Trump named: former U.S. Solicitor General Paul Clement and Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals.

David Bernstein, a member of the Federalist Society and professor at George Mason’s Antonin Scalia Law School, said he favors Lee and Sen. Ted Cruz (R-Texas) as nominees, though Lee is reportedly not interested in the nomination.

Bernstein said Texas Supreme Court Judge Don Willett would also be a good pick.

“It would be nice to have someone who served on a state Supreme Court,” he said.

Conservatives are overall pleased with Trump’s list, which he crafted with the help of The Heritage Foundation, a conservative think tank.

“When you have an embarrassment of riches, everyone is going to have a different favorite,” said Michael Lotito, who co-chair’s Littler Mendelson’s Workplace Policy Institute.

“I’m confident he’s going to pick someone who has a great respect for the separation of powers and is very sensitive to the proper role of the judiciary, and I think that is a major change from Obama to Trump.”

An open question is whether Trump’s Supreme Court nominee will get Democratic support.

Senate Republicans are set to have a 52-48 majority next year, six votes short of the 60 now needed to break a filibuster of a Supreme Court nominee.

If Trump’s pick doesn’t get 60 votes, it’s possible that Senate Republicans will change the rules of the Senate so that Supreme Court nominees can be approved with a simple majority vote. Groups on the right are already pushing for that option.

While liberal groups are fearful for the future, they note that Trump does not yet have the chance to dramatically reshape the court.

Brianne Gorod, chief counsel at the Constitutional Accountability Center, noted that Trump is only filling a seat that was previously held by a conservative.

“In the short-term, the result will be to return us to the status quo,” she said. “While it means we’ll have a very conservative court, there will be opportunities for progressive victories.”

As for future vacancies, Gorod said, “we’ll have to wait and see.”

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