Skip to content
Link copied to clipboard

Trump nominee could reshape the Supreme Court — or the Senate

Even before President Trump revealed his pick for the U.S. Supreme Court on Tuesday night — live from the White House! — an epic confirmation battle was taking shape.

After all, the seat vacated by Justice Antonin Scalia's death last February, and more broadly the chance to reshape the direction of the high court for years to come, were key prizes in the closely fought presidential election.

Senate Democrats remain angry that Republicans blocked President Barack Obama from filling the vacancy for 11 months without holding a single hearing on his nominee. Liberal activists are pressing the Democrats to retaliate.

Since Scalia's death, the court had been divided equally between four Democratic appointees and four Republican ones, resulting in a few deadlocks and some narrow decisions.

A new justice appointed by Trump would shift the court back to the right, as it had been since 2006, with Justice Anthony M. Kennedy, nominated by Ronald Reagan, acting as an occasional swing vote by siding with the court's more liberal members.

"The most immediate effect is it returns to being the 'Kennedy Court,' " said Michael Gerhardt, a professor of constitutional law at the University of North Carolina who is the National Constitution Center's scholar-in-residence.

"This puts Kennedy right back at the center, where he becomes the fifth vote on either side," Gerhardt said. "He's comfortable in that role. ... He'll be the focus."

Because the Supreme Court is a lifetime appointment, Trump's choice, if confirmed, would likely be on the court for decades.

At least one other court vacancy is considered possible during the Trump presidency. The three oldest justices are Kennedy, who is 80, and the two most senior members of the liberal wing, Justice Ruth Bader Ginsburg, 83, and Justice Stephen G. Breyer, 78.

"A real seismic change in the broad ideological direction of the court could come with the next vacancy," said Perry Dane, a professor at the Rutgers Law School in Camden who was a Supreme Court clerk for Justice William Brennan.

If Trump has the chance to replace one of those three with another conservative justice, the court could shift to a solid right-leaning majority. That could endanger liberal precedents on abortion, affirmative action, and gay rights, among other things.

Of course, justices are individuals and can change over time, Dane said. "One interesting question is whether this new justice is going to be an 'Article 2' conservative, interested in protecting presidential power, or an 'Article 3' conservative, who wants to emphasize the court's role in the constitutional structure," he said.

Trump has given every indication of being an activist president so far, and the new justice's stance could have profound implications on issues that may come before the court, such as the constitutionality of the president's executive order to strip federal funds from so-called sanctuary cities.

Scalia was an originalist in approach, relying on what the Constitution explicitly says rather than extrapolating meaning from its general principles, and was opposed to the Roe v. Wade decision legalizing abortion. Trump has vowed to appoint justices in the Scalia mold.

One of the farthest-reaching effects could be on the Senate, if the fight is nasty enough. Some Democrats have vowed to block the Trump appointment, whoever it is, by filibuster.

"This is a stolen seat," Sen. Jeff Merkley (D.,Ore.) told Politico on Monday. "This is the first time that a Senate majority has stolen a seat. We will use every lever in our power to stop this."

Republicans, who control the chamber with 52 votes, would have to muster 60 to break the filibuster and get Trump's pick confirmed. On Supreme Court appointments, a minority can still thwart the president's will with 41 votes, although other presidential appointees can be approved by a simple majority under new rules the Democrats, then in the majority, pushed through on a party-line vote in 2013. Republicans had been blocking Obama nominees for jobs throughout the government.

"We're not looking for payback," Sen. Charles Schumer of New York, the Democratic leader, said on NBC's Today on Tuesday. Yet he also said that it would take a "mainstream" nominee to draw bipartisan support, as the last four court nominees have done.

Senate Majority Leader Mitch McConnell (R., Ky.) could push to change the rules to approve Trump's nominee by a simple majority, if the dispute gets that far.

Dane mused on the strangeness of the increasingly polarized nomination process in Washington. "Everybody will be tuning it at 8 o'clock to see which celebrity gets the appointment, waiting on the edge of our seats for the fate of the nation to turn," he said. "It's quite bizarre by world standards."