The fight over filling the Supreme Court escalates big time this week, when President Donald Trump announces his nominee to replace the late Justice Antonin Scalia.
With Trump’s choices reputedly narrowed to two or three conservative appellate judges, the president said Monday that he would publicly unveil the nominee on Tuesday, moving up his timetable from the previously announced Thursday. There’s a distinct possibility of a leak before then, as lawmakers, interest groups and everyday citizens appear stoked for a confrontation that’s been nearly a year in the making.
“I can already tip you off,” Vice President Mike Pence told GOP lawmakers meeting in Philadelphia last Thursday. “President Trump’s going to keep his promise to the American people and he’s going to nominate a strict constructionist to the Supreme Court.”
One of the leading contenders, Denver-based Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals, has specifically praised Scalia as a “lion of the law.” Scalia himself denied he was a strict constructionist, though the label often stuck to him.
A strict constructionist, as a general matter, holds that the Constitution’s reach is limited to the document’s literal text as it was written in 1789 or added to in subsequent amendments. It’s also political shorthand that’s particularly useful for those, like Trump, who are not themselves lawyers. Pence is a graduate of Indiana University’s Robert H. McKinney School of Law.
“Unlike the previous president, I don’t think this president is interested in the legal questions,” Saikrishna Prakash, a professor at the University of Virginia School of Law, said during a panel discussion at the American Enterprise Institute in Washington. “This president came to office as a businessman . . . (who) is going to rely on his lawyers” on certain crucial legal issues.
The justices that I'm going to appoint will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment.
Donald Trump, Oct. 19, 2016
Trump has said he’s been helped identifying candidates by leaders of the conservative Heritage Foundation and Federalist Society. Some of the consultations have been informal, with attorneys in the White House counsel’s office. Gut instinct and personal chemistry also count in judicial selections, as does a potential candidate’s ability to navigate a president’s sometimes unpredictable psychology.
Senate Republicans won the early rounds on replacing Scalia, by refusing to consider a Democratic nominee for nearly 10 months last year. The extraordinary obstruction secured for Trump the power to make the lifetime appointment, though his eventual nominee will also face Senate Democrats still angry over the GOP treatment of the prior nominee, the widely respected Judge Merrick Garland.
Trump started marketing his eventual Supreme Court choice with two public lists, totaling 21 ostensible candidates. Some of the early names seemed floated primarily for political purposes, like the ego-stroking inclusion of Republican Sen. Mike Lee of Utah. The initial lists also included four women and, ethnically, one African-American, one Hispanic and one Asian-American.
The subsequent winnowing has sometimes seemed like a horse race, or perhaps a high-stakes reality TV show played out via leaks, as candidates rise and fall in the Trump team’s supposed estimation. At one time, for instance, Chicago-based appellate Judge Diane Sykes seemed to be in the top ranks, but of late her stock appears to have fallen.
Participants in a popular online FantasySCOTUS prediction game had pegged Gorsuch as the likeliest nominee as of Friday.
Gorsuch and the other two reported finalists are middle-aged white men, with conservative judicial credentials that would effectively retain the court’s 5-4 rightward tilt, seen during Scalia’s tenure.
“Replacing a conservative with a conservative will not affect the balance on the court,” noted Charles Geyh, a professor at Indiana University’s Maurer School of Law. “The next appointment is likely to be more important in that regard.”
At 49, Gorsuch is the youngest of the presumed finalists and his elite educational background most closely matches that of the current justices. Born in Denver, he earned his undergraduate degree from Columbia University, his law degree from Harvard and a doctorate in legal philosophy from Oxford University.
Gorsuch’s conservative views on issues including support for the death penalty, religious liberty and the Second Amendment have largely echoed Scalia’s positions. He is, however, less controversial than at least one other finalist, and he won confirmation to his current seat by a 95-0 vote.
A more incendiary choice, by far, would be Judge William H. Pryor Jr. of the 11th U.S. Circuit Court of Appeals. The 54-year-old Pryor once denounced the Supreme Court’s 1973 Roe v. Wade decision upholding a woman’s right to an abortion as the creation “out of thin air of a constitutional right to murder an unborn child” and as “the worst abomination in the history of constitutional law.’’
Pryor had to fight his way to confirmation to his current seat, finally getting by on a 53-45 vote.
A third top contender, Judge Thomas Hardiman, of the 3rd U.S. Circuit Court of Appeals, is a 51-year-old, Spanish-speaking conservative who has been vocal on Second Amendment rights, generally unsympathetic to death-row inmates and mostly silent on abortion. He has also had, until recently, a relatively low profile.
The new justice will enable the court to avoid the 4-4 deadlocks that have stymied definitive statements on some pressing issues. These ties uphold lower appellate court rulings without setting national precedent, and they have been cutting both ways.
CORRECTION: An earlier version of this article gave the wrong Indiana University law school as Vice President Mike Pence’s alma mater. He graduated from the Robert H. McKinney School of Law.