Federal Courts and Nominations

Trump Fulfills Conservative Wishes With High Court Shortlist

By Greg Stohr

Conservatives who care about the U.S. Supreme Court put their faith in Donald Trump. Now he is poised to reward it.

Barring a dramatic shift in approach, the president is a week away from nominating someone who would become a core member of the court’s conservative wing. Each of four appellate judges in contention for the slot, including frontrunners Neil Gorsuch and Thomas Hardiman, would fit neatly into the ideological mold of the man they would succeed, the late Justice Antonin Scalia.

“I have made my decision pretty much in my mind, yes,” Trump said in a video clip of an interview set to air Thursday night on Fox News’ “Hannity” program. “That’s subject to change at the last moment, but I think this will be a great choice.”

The outcome is one conservatives are sure to hail even as some once questioned whether it would happen. Trump won plaudits in conservative circles in May when he released a list of 11 prospective justices, but skeptics openly questioned whether the then-candidate could be trusted — especially given his description of the list as a “guide.”

Instead, Trump doubled down. In September he added another 10 names, including Gorsuch, and promised to choose his Supreme Court nominees from the full list of 21. The list was heavy with judges recommended by two conservative groups Trump consulted, the Heritage Foundation and the Federalist Society.

“What he was most proud of in this campaign was his list of 21,” said Leonard Leo, the Federalist Society’s executive vice president and a key outside adviser to Trump on the Supreme Court. “That was his idea, and it was a brilliant stroke in terms of giving the voters a sense of what the man stood for.”

Prodded by his aides, Trump talked about the court and its pending vacancy in campaign speeches, occasionally singling out Pryor and another appeals court judge, Diane Sykes, as potential nominees. His words reflected a growing appreciation of how the issue was helping solidify his support among a crucial block of voters — those eager to restore the court’s conservative tilt and prevent it from falling into liberal hands.

“If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway,” he said at a rally in Iowa in July. “You know why? Supreme Court judges, Supreme Court judges.”

The Supreme Court is rarely a major issue in presidential elections, but exit polls suggested it was unusually important in 2016. According to CNN’s poll, 21 percent of voters cited the high court as the most important factor driving their vote. Among that group, 56 percent voted for Trump and 40 percent for Democrat Hillary Clinton.

“I personally know some conservatives who didn’t like Donald Trump, but held their noses and voted for him because they liked his list,” said the Heritage Foundation’s John Malcolm, whose own list of potential justices helped shape Trump’s.

Gorsuch, 49, has a reputation as a stellar writer. As an appeals court judge in Denver since 2006, Gorsuch has backed religious liberty and criticized the Supreme Court ruling that requires judges to defer to administrative agencies on the scope of federal statutes.

A study led by Mercer University law professor Jeremy Kidd concluded that Gorsuch is the second-most similar to Scalia among Trump’s list of 21.

“I’d be thrilled to see him,” said Carrie Severino, chief counsel of the conservative Judicial Crisis Network. “He is so eminently qualified and has a great record on the bench.”

Skeptic of Government

The Pittsburgh-based Hardiman, 51, is a skeptic of big government, says Duquesne University President Ken Gormley, who has known him since 1992. Like Scalia, Hardiman believes the Constitution should be interpreted according to its language and the country’s founding principles, Gormley said.

He is a “strong, principled conservative” and was a “fierce defender of Second Amendment rights even before that was in vogue,” said Gormley, a Democrat. “He just believes that that is part of the guarantee of the Constitution. He is a very strong believer in judges doing their job and not legislating.”

Appellate judges William Pryor and Raymond Kethledge are also possibilities for the nomination, a person familiar with the selection process said. Pryor, who has decried abortion and the 1973 Supreme Court decision that legalized it, would invite an especially contentious confirmation fight.

No matter whom Trump chooses, the next justice will largely restore the balance that existed before Scalia’s death last February. That could mean a court that broadens gun rights, upholds voter-identification laws and blocks campaign-finance regulations.

‘Burden Is on Them’

Liberal groups say they are skeptical. “The burden is on them to show that they don’t share the extreme view that the president nominating them has and that they are mainstream candidates who will follow the law and the Constitution,” said Elizabeth Wydra, president of the progressive Constitutional Accountability Center.

It will be a far different court than Democrats envisioned when President Barack Obama nominated Judge Merrick Garland to succeed Scalia last March. That nomination would have given the court a majority of Democratic appointees for the first time since 1969.

Senate Republican Leader Mitch McConnell kept Garland’s nomination from ever receiving a hearing or vote. The approach drew political fire, but it is about to pay dividends for conservatives ready to celebrate a nomination by Trump.

The people on the shortlist “are very, very solid judges, all with a track record you can examine,” Malcolm said. “They each give every indication that they will be outstanding Supreme Court justices.”

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