Needless to say, the plans to push Barack Obama’s nominee, Merrick Garland, for the Supreme Court seat left vacant by Antonin Scalia’s passing have evaporated. Republicans who demanded a halt to his confirmation process have been vindicated by the resounding Electoral College victory of Donald Trump, who now controls the nomination process. Thanks to a big win yesterday, Senate Republicans will control the confirmation process too, albeit with a too-narrow majority to stop a filibuster (more on that in a moment).
This literally might be the first decision Trump has to make on January 20th, 2017 — who will he pick instead of Garland? CNN reminds us of the list of potential nominees that the Trump campaign released six months ago, in large part to woo movement conservatives into the fold after clinching the nomination:
It was in May that Trump unexpectedly released a list of 11 judges.
The list included: Steven Colloton of Iowa, Allison Eid of Colorado, Raymond Gruender of Missouri, Thomas Hardiman of Pennsylvania, Raymond Kethledge of Michigan, Joan Larsen of Michigan, Thomas Lee of Utah, William Pryor of Alabama, David Stras of Minnesota, Diane Sykes of Wisconsin and Don Willett of Texas.
Trump later hedged on the list just a little, saying that the names represented the kind of jurist he would seek for the position. In September he added more names to the list, including Sen. Mike Lee (R-UT), a Trump critic who promptly announced that he wasn’t interested in the job. Largely, though, the lists achieved their short-term goal; it focused conservatives on the danger of having Hillary Clinton name the next two or three Supreme Court nominees, and especially the choice to replace a stalwart conservative whose passing threatened to tip the balance of the court to the Left.
Now, however, Trump has to actually make a choice. The stakes are high, politically as well as judicially. A misstep here could lose Trump any goodwill he has been able to build with movement conservatives. However, I suspect that Trump’s inclined to give conservatives whatever they want on this choice. He’s not driven by ideology but he understands how deals get made — and Trump at least knows that this will be a big chit to call in when he wants to start talking about infrastructure spending and trade.
So who gets the call? William Pryor would give pro-lifers a reason to cheer; Pryor had to defend his statement in a 2003 Senate confirmation that Roe v Wade was “the worst abomination in the history of constitutional law.” He’s only 54 years old now and has been on the Eleventh Circuit for thirteen years. That might prompt a filibuster attempt by Democrats, but that’s a dangerous game for them to play, too. Harry Reid all but eviscerated any precedent for protecting the filibuster, and provoking the nuclear option that Reid himself detonated in 2014 for appellate appointments risks allowing simple majorities to confirm even more “objectionable” nominations down the road. Republicans will never has as much moral authority as they do now to nuke the filibuster on SCOTUS confirmations, and after 2018’s midterms will probably have an even larger majority anyway.
Trump could kill more than one bird with one stone by choosing his first Supreme Court nominee from the Senate, but with Ted Cruz rather than Lee. Cruz looks likely to face a tough primary challenge for his seat in 2018, and he’s torched a number of bridges with his colleagues in the Senate over the last few years for very little gain. With Trump in the White House now, Cruz has to look to 2024 for a potential shot at the Oval Office, and could very well have been out of public office for six years by that time. His Senate colleagues might be delighted to confirm him and let Texas voters select Cruz’ replacement in 2018. That would eliminate at least a theoretical opponent in the 2020 election for Trump and push Cruz into a position where he’d have to think carefully about criticizing the new administration. Plus — and this is no joke — the court would get a brilliant legal mind on constitutional issues to replace the one we lost early this year, potentially for the next 40 years, and a jurist unlikely to “grow in office” to the Left. Sounds like a win-win, right?