WASHINGTON — The unexpected death of Justice Antonin Scalia on Feb. 13, 2016, may well have tipped the balance in the 2016 presidential race. Now it could tilt the scales of justice.
The consequences of President Donald Trump’s skillful use of the high court’s makeup during the 2016 election will become clear when he picks his second nominee for the U.S. Supreme Court to succeed retiring Justice Anthony Kennedy. An announcement is expected Monday night.
Scalia’s death left the court split 4-4 between justices chosen by presidents of each party and offered Democrats a long-awaited opportunity to set the high court’s majority.
President Barack Obama sought to seize the moment by picking federal Judge Merrick Garland to succeed Scalia.
But he was outflanked by Majority Leader Mitch McConnell, R-Ky., who refused to schedule a committee hearing on Garland.
Candidate Trump sensed an opening to send a signal to Republicans dubious about his conservative bona fides.
He stated repeatedly that he is anti-abortion and would appoint justices who would overturn Roe v. Wade. Then, in May 2016, with the help of the conservative Federalist Society and Heritage Foundation, he released a shortlist of 11 possible justices — all reliably conservative and highly qualified.
Trump added to the list after winning the primary and again after capturing the White House over Democratic nominee Hillary Clinton. But he stuck to the original formula both times.
Key issue for Trump voters
According to the Edison Media Research exit poll, one quarter of Trump voters named the Supreme Court as the most important issue.
In his first month in office, Trump rewarded the GOP base by picking Neil Gorsuch, a reliably conservative and impeccably credentialed jurist whom the Senate had unanimously confirmed as a federal circuit court judge in 2006.
But even with the GOP in control of the Senate, Gorsuch was no shoo-in.
Senate Democrats, many infuriated at Republicans’ refusal to hold hearings for Garland, largely rejected Gorsuch. That led McConnell to engineer a rules change that allowed Supreme Court nominees to win confirmation by a simple majority. He framed the move as payback for Democrats’ 2013 rule change, orchestrated by then-Senate Majority Leader Harry Reid of Nevada, that ended the 60-vote filibuster for all judicial nominees except those for the top court.
The Senate’s GOP majority was down to 52 after the election. But on April 7, Gorsuch was confirmed with 54 votes, three coming from Democrats in Indiana, North Dakota and West Virginia, all states Trump won handily in 2016.
With his second bite at the apple, Trump must tread more carefully. With a 51-seat majority and Republican Sen. John McCain of Arizona ill, Trump needs every Republican vote.
All eyes will be on Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, two moderate Republicans who support abortion rights.
ACLU targets Collins, Murkowski
Even before Trump named his pick, the ACLU announced a six-figure TV ad campaign designed to push Collins and Murkowski into the “no” column. “Trump’s Supreme Court nominee must publicly declare a position on Roe,” the ads declare, directing voters to tell Collins or Murkowski to determine “whether the nominee will protect the right of women to make their own health care decisions.”
“ACLU’s doing what it can,” Loyola Law School professor Jessica Levinson said of the campaign. “They’re trying to pick off the only moderate Republican senators.”
But John Malcolm of the Heritage Foundation, which helped Trump craft his list of potential justices, said he doesn’t think any of them will be corralled into expressing an anti-abortion position.
“I don’t think any of these nominees are going to fall for that,” he said.
Both Collins and Murkowski voted to confirm Gorsuch, who told the Senate Judiciary Committee that the 1973 landmark decision that established abortion rights is “the law of the land.”
But Gorsuch also testified that he never told Trump how he would rule on abortion. Indeed, he said that if Trump had asked, he “would have walked out the door.”
“No nominee will openly discuss how he or she will rule on the question during White House vetting or Senate confirmation, because nominees will not prejudge the questions to come before them,” John Yoo, a former Justice Department official under President George W. Bush and now a law professor at University of California, Berkeley, told the Review-Journal. But none of the judges on Trump’s list of 25 candidates uses an approach to constitutional law likely to find a right to abortion, he added.
“They’ve been brilliant about this,” Levinson, who describes herself as left of center, said of Trump’s outsourcing the vetting of potential nominees to conservative legal scholars. “I think whoever Trump nominates is going to be confirmed.”
A top-three list of likely nominees was leaked to many news organizations last week.
The rumor mill
It features Amy Coney Barrett, 46, a federal judge on the 7th Circuit Court of Appeals. Barrett became a favorite of the conservative base during her Senate Judiciary Committee hearing in September, when Sen. Dianne Feinstein, D-Calif., concerned that the nominee would let her Catholic views affect her rulings, told her, “The dogma lives loudly within you.”
Conservative pundits branded Feinstein an “anti-Catholic bigot” and starting selling T-shirts that say, “The dogma lives loudly within you.”
Brett Kavanaugh, 53, is the favorite of the Beltway’s conservative legal establishment. The Yale Law School graduate clerked for Kennedy, co-wrote special counsel Ken Starr’s report that led to the impeachment of President Bill Clinton and worked as an assistant to President George W. Bush. He’s been on the federal Court of Appeals in D.C. since 2006.
Raymond Kethledge, 51, a federal judge on the 6th Circuit Court of Appeals, also clerked for Kennedy. A University of Michigan Law School graduate, Kethledge wrote what the Wall Street Journal editorial page hailed as the 2014 legal opinion of the year when he ruled against the Equal Employment Opportunity Commission for suing a for-profit education company because it ran credit checks on potential students, which it said represented a “disparate impact.” It turned out the EEOC ran the same credit checks.
Like Gorsuch, these judges are sufficiently young that any of them could serve on the court for decades, extending Trump’s legacy far beyond his tenure in the White House.
“The president has an embarrassment of riches in terms of qualified people to choose from,” said Malcolm of the Heritage Foundation.
But Yoo said Trump could let political considerations influence his choice.
“In my mind, if they are all equally conservative, then Trump would look into electoral advantage in his pick. Why shouldn’t he pick someone from a battleground state where he flipped it from a Democratic win, such as Michigan, Wisconsin or Pennsylvania?” he asked.
Kethledge is from Michigan.
But other judges on the Trump list are from flip states, too.
Federal appeals court Judge Diane Sykes, 60, is from Wisconsin, and appeals court Judge Thomas Hardiman, 53, is from Pennsylvania. He’s also said to be the favorite of Trump’s sister, Judge Maryanne Trump Barry.
Hardiman’s name also was the subject of rumors Friday, reinforcing the obvious possibility: Trump could do something entirely unexpected Monday night.
NOTE: An earlier version incorrectly said that Amy Coney Barrett is a federal judge on the 6th Circuit Court of Appeals.
Trump on SCOTUS
“My greatest responsibility is to select a justice who will faithfully interpret the Constitution as written. Justices are not supposed to rewrite the law, reinvent the Constitution or substitute their own opinions for the will of the people expressed through their laws. We reject judicial activism and policymaking from the bench.”
— President Donald Trump in July 6 statement.