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January 3, 2017

Latest SCOTUS short-list speculations and suggested nomination timeline

SCOTUS junkies will want to be sure to check out this latest lengthy Politico article headlined "Inside Trump's strategy to remodel the Supreme Court: The president-elect is narrowing his short list while his advisers look beyond the current opening." Here are snippets that struck me as especially new or noteworthy:

Donald Trump has narrowed his short list for his first Supreme Court pick down to roughly a half-dozen finalists but the president-elect and his top advisers are already thinking about a second selection, as they seek to quickly remodel the high court with a reliably conservative bent.  Trump’s team wants to make filling the seat held by the late Justice Antonin Scalia one of the earliest acts of his presidency, according to multiple transition officials, in hopes of scoring an energizing and unifying victory for the conservative movement.

And as Trump weighs perhaps the most enduring personnel decision he’ll make as president-elect — filing one of only nine lifetime seats on the high court — he has sought input from an array of friends, former rivals, and legal and TV personalities. “He clearly understands he may have a chance to define the court for a generation or more and he is taking it very seriously,” said former Speaker Newt Gingrich, a Trump confidante.

While Scalia’s seat is the only current opening, Trump’s advisers are plotting how to fill that vacancy in tandem with the next one — a slot if vacated by a liberal justice like Ruth Bader Ginsburg, 83, or swing-vote Justice Anthony Kennedy, 80, could far more dramatically move the court’s political center of gravity to the right. The thinking inside the transition, according to multiple people involved in the internal deliberations, is that Scalia’s replacement offers Trump and the conservative movement the best chance for an unabashedly rock-ribbed replacement because it would not fundamentally shift the court’s balance of power....

But in the current search process, Trump’s team is also hoping to identify a conservative candidate — possibly a woman — who could be more politically palatable, or at least harder for Senate Democrats to oppose, if Kennedy or Ginsburg leave the court.... Two of the most-discussed names are Diane Sykes of the Chicago-based 7th Circuit federal appeals court and William Pryor of the Atlanta-based 11th Circuit, in part because Trump himself name-dropped them at a primary debate last February....

Trump, besides promising to appoint justices in the mold of Scalia, is looking for some distinctly Trumpian qualities.  He has repeatedly told his advisers, for instance, “I want someone who is not weak.”  That is especially appealing to legal conservative hardliners who are still scarred by former Justices David Souter and Sandra Day O’Connor, two Republican appointees who often sided with the court’s liberal bloc, and to a lesser extent Chief Justice John Roberts, an appointee of President George W. Bush, who upheld the constitutionality of President Obama’s health care law....

Those close to Trump’s search process say that the list now under more serious consideration is closer to a half-dozen, including Pryor and Sykes, as well as 3rd Circuit Judge Thomas Hardiman, 6th Circuit Judge Raymond Kethledge, 8th Circuit Judges Steve Colloton and Raymond Gruender, 10th Circuit Judge Neil Gorsuch and Michigan Supreme Court Justice Joan Larsen.

Trump released two lists of potential justices during the campaign, but most of the candidates under serious consideration are on the initial list of 11.  The only two women in the current top tier, Larsen, who is only 48, and Sykes, 59, are among those who could be “held back” for a second opening. “Going with a woman or a minority does get you some brownie points, so in terms of picking the hardest to confirm now, that would argue for a man,” Levey said. “Also the symbolic value, if Ginsburg does leave the court, of replacing her with a woman WOULD be important.”

Trump’s advisers want his Supreme Court pick to be one of his earliest acts as president, though the plan has been not to announce a choice until after Sen. Jeff Sessions is confirmed as attorney general.  Both Sessions and any high court pick must pass through the same Senate Judiciary Committee.

The two men spearheading Trump’s search are Don McGahn, Trump’s incoming White House counsel, and Leonard Leo, the Federalist Society’s executive vice president. Incoming White House Chief of Staff Reince Priebus, and top Trump advisers Steve Bannon and Kellyanne Conway are also involved, as are Vice President-elect Mike Pence and Sessions.

Leo said on “Fox News Sunday” that Trump’s team wants the Scalia vacancy filled in time for the new justice to be seated for the final sitting of this term in late April. That could allow the new justice to weigh in on important pending cases, including the detention of immigrants and transgender rights. “Ideally, you would have someone who could be seated on the court at least by then to hear those final round of cases, perhaps even have some of the 4-4 decisions, if there are any, reheard by the court,” Leo said. He noted that Ginsburg — “one of the most liberal justices”— was confirmed in just 50 days at the start of President Clinton’s first term....

As he often does ahead of big decisions, Trump has sought opinions from far and wide, including Fox News legal analyst Judge Andrew Napolitano, former rivals Ted Cruz and Rick Santorum and at least one person on his longer list: Sen. Mike Lee of Utah, who is not considered to be in serious contention for a high court seat. While Trump promised his public list of 21 was “definitive” when it was announced, he could still expand it for a second pick. “After the first nominee he may add some new possibilities,” Gingrich said, a view confirmed by another transition official.

A few prior related Trumpian SCOTUS posts:

January 3, 2017 at 11:25 AM | Permalink


One question is how the current pick alters the odds of a second or third pick? While the Scalia pick allows Trump some freedom to pick a far right nominee, such a choice might make it less likely that Justice Kennedy would voluntarily retire. While Justice Kennedy has tended to be a conservative, he has also -- most of the time -- supported slow incremental change. If Justice Kennedy had confidence that his replacement would follow the same path, he might decide that thirty years on the court is enough and that it's time to retire. If Justice Kennedy thinks that Trump intends to revolutionize the Supreme Court, he might decide to wait Trump out. Picking someone somewhere between Chief Justice Roberts and Justice Scalia might be the better strategic move to lock up a conservative-leaning majority for the next twenty years (by increasing the chances that Justice Kennedy and Justice Thomas opt to retire).

Posted by: tmm | Jan 3, 2017 12:07:52 PM

To me the biggest danger in all of this is the way the discourse has shifted. Once upon a time people argued that there was an unstated rule for a "Jewish" slot on the court. These days it is all about partisan seats on the court. The problem with such a discourse is that it inevitably undermines the court's legitimacy and the need for an independent judiciary dissipates.

Posted by: Daniel | Jan 3, 2017 7:02:12 PM

Ideology was long an issue in Supreme Court appointments.

Brandeis being Jewish wasn't the core reason why his nomination was so controversial. etc.

Posted by: Joe | Jan 4, 2017 10:56:24 AM

"Ideology was long an issue in Supreme Court appointments."

Partisanship and ideology are not the same things. The current objection on the right to Kennedy as it was to Souter is not that they failed an ideological test, it is that they failed a politically partisan test.

Posted by: Daniel | Jan 4, 2017 11:37:35 AM

There is much overlap and Jeffersonians objected to "Federalists" both as an ideology and partisan brand. The separation is rather unclear in actual practice. The current battles go back over forty years at least (Nixon made the Supreme Court a partisan battle) but they were but the most recent. The issue goes back to the beginning & once you make appointment and confirmation a product of politicians who break down into parties, it is rather hard to avoid.

Posted by: Joe | Jan 4, 2017 12:54:10 PM

"The current objection on the right to Kennedy as it was to Souter is not that they failed an ideological test, it is that they failed a politically partisan test."

I'd directly ask what "political partisan test" did Kennedy, e.g., violate?

He repeatedly violated the current ideological brand of the Republican Party though Democrats are upset at him about various things too. Why? Ideology. There is of course overlap.

Posted by: Joe | Jan 4, 2017 12:57:18 PM


DOMA. Same sex marriage may have been an ideological issue generally but Windsor was a purely partisan attack by Kennedy. It had been passed by a Republican Congress and signed into law by a Democratic president. In other words, Obergefell did not undo any act of Republican political power whereas DOMA did. It's that kind of toeing the line that the alt-right wants to see. A Republican Justice should not undo what a Republican Congress did.

Posted by: Daniel | Jan 4, 2017 7:00:07 PM

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