If Politico’s correct about the new administration’s Supreme Court strategy, Ted Cruz might have a long, long wait for a phone call. Donald Trump’s first major act as President will almost certainly be to fill the opening left by the death of Justice Antonin Scalia, which has remained open for a year while Republicans blocked efforts at a lame-duck appointment of Merrick Garland. However, the focus of Trump’s strategists is not this opening, but the next one to come — likely from the liberal wing of the court:
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.
Politico’s Shane Goldmacher and Josh Gerstein report that the short list for the immediate opening consists mainly of those who were on the first set of names cited by Trump in the campaign. The emerging top choices are William Pryor and Diane Sykes, both on federal appellate benches at the moment. Pryor would certainly make conservatives happy enough as Scalia’s replacement. Democrats feared his appellate nomination enough to tie it up for almost two years, only relenting with the Gang of Fifteen compromise. If Trump nominates Pryor, that might even give John McCain — one of the main forces behind the Gang of Fifteen — some reason to crow about vindication. And at 54, Pryor is still young enough to offer the promise of a long run on the top bench.
Sykes would also give conservatives reason to cheer, but Trump might keep her in reserve for a more propitious moment. That moment would be Ruth Bader Ginsburg’s expected retirement, and it might put Michigan Supreme Court Justice Joan Larsen in play too:
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.”
Let’s assume for a moment that the next opening is a Kennedy retirement, or even a Stephen Breyer exit. Would the path be clear for Cruz at that point rather than Sykes or Larsen? A Cruz nomination in a second slot (or third) makes a lot of sense. Trump pledged to pick the first nominee from his eventual list of 20+ conservative jurists, but not all of them. As a Senator, Cruz could either expect to get a slightly easier confirmation process in accordance with upper-chamber tradition … or just because they’d all like to see him go. That would fix the 2018 election issue in Texas, where Republicans have been mulling a primary challenge (assuming the second and/or third openings come before then), avoiding an internecine fight. More substantially, it would give conservatives a brilliant purist stalwart on the Supreme Court who will not “grow in office” in order to score cocktail-party cred in the Beltway — and he’d be there for three decades.
However, it’s much more likely that Ginsburg will leave next, a likelihood which the Trump team is already gaming out. If nothing else, it shows that their focus on the Supreme Court was more than just a sales pitch to woo conservatives until the general election concluded. They appear committed to shifting the center of the court to the Right to a significant degree, and are arranging the chess pieces for a multi-year strategy. For those who held their noses and voted for Trump strictly on the basis of Supreme Court nominations, this will be very good news.