President-elect Donald Trump has met with one of the judges on his short list for potential Supreme Court nominees, less than two weeks before he is expected to announce his choice for the nation’s highest court.
Judge William Pryor, an Alabama-based judge on the 11th U.S. Circuit Court of Appeals, met with Trump in New York on Saturday, said two people familiar with the meeting. They spoke on condition of anonymity because the meeting had not been publicly announced…
He was the Alabama’s attorney general from 1997 to 2004. His predecessor in that job, Sen. Jeff Sessions, is Trump’s pick for U.S. attorney general, and the two — both natives of the city of Mobile, are said to have a close working relationship.
I’ve assumed for months that Pryor will be the pick. Last February, he and Diane Sykes were the two judges Trump named at a GOP primary debate as potential replacements for Scalia. Three months later, Trump released a list of 10 judges whom he would consider for the Court vacancy. Pryor and Sykes were among the 10. Trump’s list later ballooned to 21 judges, but a week ago CNN reported that the transition team had zeroed in on six. Again, Pryor and Sykes were among them. A week after Trump won the election, Tim Alberta asked around at the Federalist Society to see who the conservative legal intelligentsia’s favorites for the Court were. Two names came up repeatedly. Can you guess whose they were?
Pryor isn’t just regarded as a brilliant legal mind; he is viewed as the most rock-ribbed conservative of any potential Supreme Court appointee. His ideological mooring makes him hugely appealing to elements of the conservative movement who have felt betrayed by Chief Justice John Roberts and are looking for the next Republican nominee to be an absolute slam-dunk. Pryor would certainly be that: He famously once ended a prayer by saying, “Please, God, no more Souters.” But there’s a downside to Pryor’s staunch conservatism: He could prove exceedingly difficult to confirm. There’s a reason Bush used a recess appointment to get Pryor on the appellate court back in 2004: Senate Democrats initially refused to confirm him, horrified that he had, in their view, equated same-sex relations with bestiality (a charge disputed by some on the right, Ramesh included) and had separately called the Roe v. Wade decision “the worst abomination of constitutional law in our history.” Pryor stood by those comments during his hearings and was eventually confirmed in 2005. That unflinching approach, while attractive to conservatives, could make for an unnecessarily messy confirmation.
The other top candidate mentioned to Alberta was, of course, Sykes. So why is Pryor a favorite to be Trump’s first nominee? Simple: Because he’d likely be harder to confirm than Sykes would, in which case Trump might need the extra political capital he currently enjoys during his presidential “honeymoon period” to try to get Pryor through. Sykes won Senate confirmation for her seat on the Seventh Circuit easily in 2004 by a vote of 70-27. As Alberta notes, Democrats will be wary of blocking a woman nominee from Wisconsin, a Rust Belt state they’re desperate to win back in 2020. Pryor, by contrast, was filibustered repeatedly when he was nominated to the 11th Circuit in 2003. It took the “Gang of 14” deal in the Senate in 2005 to finally get him through; in the end, he was confirmed narrowly, 53-45. If Sykes is nominated this month and gets confirmed, Democrats will feel perfectly comfortable filibustering Pryor later if he’s Trump’s second nominee for the Court. If Pryor is Trump’s first nominee, though, some Democrats — particularly those up for reelection in 2018 in red states won by Trump — may get cold feet about blocking the new president’s initial nominee right out of the gate. That’s why Pryor’s the favorite, and until we hear that Trump met recently with Sykes as well, he’s really the only candidate. Democrats are going to wage all-out war to block him, just as they did once before. I hope McConnell’s prepared to nuke the filibuster, as eight Democratic votes will be a heavy lift in a climate in which the left is spoiling for a fight and Trump’s job approval is momentarily in the 40s. But not as heavy a lift as it’ll be if Pryor ends up as Trump’s second nominee.
By the way, if you believe Politico, a dark-horse nominee for the Scalia vacancy was briefly considered in November:
After his talk with Trump, [Ted Cruz] and his chief of staff, David Polyansky, then sat down with his chief strategist, Steve Bannon, who sounded him out about his interest in filling the Supreme Court vacancy created by the late Antonin Scalia. Cruz — widely considered one of the best Supreme Court litigators of his generation — swatted down the idea, according to four people to whom he has relayed the conversation.
Several of Cruz’s closest allies said that despite his deep interest in the law, he turned his back on a potential Supreme Court nomination because he is fundamentally a political creature. “I think the bottom line with Ted is that the monastic life of a Supreme Court justice is simply not something that appeals to him at this stage in his life, and that’s notwithstanding the fact that he has already in his young legal career established himself as one of the nation’s premier Supreme Court advocates,” said a longtime Cruz friend. “But being on that side of the lectern is a different thing. He’s an advocate; he’s passionate about advancing the causes he believes in.”
Cruz still enjoys the public spotlight and he still wants to be president so he turned down a shot at a Supreme Court appointment on the theory that one might still be available down the line to a young man all of 45 years old. Those sound like famous last words to me, though. He’s never going to be president: There simply aren’t enough conservatives left in the U.S., let alone the Republican Party, to make that happen. And he’s not personally likable enough to overcome his ideological baggage. Last year, matched against the RINO di tutti RINOs in the primary, with a flawed and unpopular Hillary Clinton waiting for him in the general election, was his chance. It didn’t happen. Meanwhile, there’s no telling when another Court vacancy will open up. If Pryor and Sykes are first in line, it may be years before Cruz gets asked again, assuming he ever does. A Democrat might win in 2020 or 2024, and whoever the next Republican president is down the road might not be as well disposed to Cruz as Trump is. He may end up stuck in the Senate regretting that he didn’t seize his chance to help shape American law for decades when he had it. Too bad.