Trump, Congress and the Supreme Court Nominee

NEWS ANALYSIS: With midterm elections looming in November, a high-stakes battle for control of the high court now begins.

The Roberts Court (April 2017–July 2018). Front row (left to right): Ruth Bader Ginsburg, Anthony Kennedy, Chief Justice John Roberts, Clarence Thomas and Stephen Breyer. Back row (left to right): Elena Kagan, Samuel Alito, Sonia Sotomayor and Neil Gorsuch.
The Roberts Court (April 2017–July 2018). Front row (left to right): Ruth Bader Ginsburg, Anthony Kennedy, Chief Justice John Roberts, Clarence Thomas and Stephen Breyer. Back row (left to right): Elena Kagan, Samuel Alito, Sonia Sotomayor and Neil Gorsuch. (photo: Official Supreme Court photo, public domain)

Last week what was already a bitter and partisan political moment in the country grew even more intense June 27, with the announcement that longtime Supreme Court Justice Anthony Kennedy, 81, had submitted his retirement to President Donald Trump. The president announced last Friday that he would name his nominee to replace Kennedy on July 9, and Senate Majority Leader Mitch McConnell, R-Ky., has said that a nominee will receive a Senate vote before the midterm elections Nov. 6. This sets up a potentially bruising nomination process, as outside groups from across the political divide are gearing up for a high-stakes battle for control of the high court for years to come.


A Second Trump Pick

The retirement of Kennedy, the court’s main swing vote, was hailed by the pro-life community and conservatives as an opportunity to appoint another reliable constitutionalist like the late Justice Antonin Scalia or the recently appointed Justice Neil Gorsuch. The president of the Susan B. Anthony List, Marjorie Dannenfelser, said in a statement immediately after the Kennedy announcement, “Justice Kennedy’s retirement from the Supreme Court marks a pivotal moment for the fight to ensure every unborn child is welcomed and protected under the law. The most important commitment that President Trump has made to the pro-life movement has been his promise to nominate only pro-life judges to the Supreme Court, a commitment he honored by swiftly nominating Judge Neil Gorsuch. … President Trump now has another crucial opportunity to restore respect for life and the Constitution.” 

The Democrats and liberal special-interest groups bitterly condemned McConnell’s 2016 decision not to advance President Barack Obama nominee Judge Merrick Garland in an election year after the death of Scalia, but they were willing to concede that Trump’s first pick, the conservative Gorsuch, was merely replacing another conservative and so maintained the overall balance of the court. There will be no such concession in the effort to replace Kennedy and absolutely no quarter in resisting what most see as such a decisively important vote on the court. Liberals are framing the nomination battle in utterly apocalyptic terms, especially over abortion. Sen. Elizabeth Warren, D-Mass., warned on MSNBC that Trump is “looking for a nominee who will criminalize abortion and try to punish women. That’s what’s at stake in this one. And then from there, so much more.”

In an interview on MSNBC’s Hardball with Chris Matthews, Sen. Kamala Harris, D-Calif., dismissed all possible nominees and said of allowing Trump to choose a replacement for Kennedy, “We’re looking at a destruction of the Constitution of the United States, as far as I can tell, based on all the folks that he’s been appointing thus far for lifetime appointments. He’s been appointing ideologues.”


The Possible Nominees

The president famously published a list of 25 possible nominees to the Supreme Court last November, and in the last few days, the White House has been clear that the next pick will be from among those jurists.

As to what the president wants from a prospective justice, Leonard Leo, executive vice president of the Federalist Society and a key adviser to Trump on judicial nominations, described three attributes during an interview with CBS last week: “One, extraordinarily well qualified. Two, people who are, in his words, not weak. And, thirdly, people who are going to interpret the Constitution the way the Framers meant it to be.”

Speaking to reporters on Saturday while aboard Air Force One on his way to New Jersey, the president said he had narrowed his options to a group of five potential candidates, adding that it might increase to seven and that it includes at least two women. “It’s a great group of intellectual talent,” Trump said. The five names most mentioned by court watchers include:

  • Thomas Hardiman, 52, who sits alongside Trump’s sister on the 3rd Circuit Court of Appeals based in Philadelphia, once worked as a cab driver and was the first in his family to graduate from college;
  • Raymond Kethledge, 51, who serves on the 6th Circuit Court of Appeals based in Cincinnati and who once clerked for Justice Kennedy;
  • Brett Kavanaugh, 53, a former clerk for Kennedy who serves on the Court of Appeals for the District of Columbia Circuit, worked for independent counsel Kenneth Starr in the 1990s and helped draft the “Starr Report” that led to President Bill Clinton’s impeachment;
  • Amul Thapar, 49, who serves on the 6th Circuit Court of Appeals and would be the first Indian-American on the Supreme Court; and
  • Amy Coney Barrett, 46, who serves on the 7th Circuit Court of Appeals in Chicago, is a mother of seven and clerked for Justice Scalia.

The second possible woman on the list might be Joan Larsen, 49, who serves on the 6th Circuit Appeals Court and was previously a Michigan Supreme Court justice, or Allison Eid, 53, who serves on the 10th Circuit Court of Appeals based in Denver, previously served as a Colorado Supreme Court justice and clerked for Justice Clarence Thomas. Hardiman and Thapar were also interviewed by Trump in 2017 before he settled on Gorsuch.

Barrett is finding strong support from conservatives who also want a strong conservative female voice on the court. Barrett had a now-infamous exchange with Sen. Dianne Feinstein, D-Calif., at her nomination hearing in 2017 for the 7th Circuit, during which Feinstein questioned Barrett’s Catholic faith with the accusation, “When you read your speeches, the conclusion one draws is that the dogma lives loudly within you.” Asked about Barrett, President Trump said, “She’s an outstanding woman.”


Strategies and Resistance

The militant rhetoric from liberals flows from their distaste for Trump and their anxiety over the court, but it also reflects the frustration among Democrats that stopping a Trump nominee is a daunting task. This is thanks in large part to now-retired Senate Majority Leader Sen. Harry Reid, D-Nev., and his decision when Democrats were in the Senate majority to use the “nuclear option” (a parliamentary procedure that killed the 60-vote majority needed to end filibusters of appointments) to push Obama nominees. Sen. McConnell embraced the option for the high court, meaning that Republicans only need a simple majority to approve a SCOTUS pick.

As with the Gorsuch nomination, a unified block of Republicans makes it all but impossible for the Democrats to stop a nominee. This does not mean that it is impossible, and two genuine threats are present for the president and his supporters. The Democrats, their media allies and well-financed special-interest groups will be working aggressively to exploit both.

First, the GOP holds the narrowest of majorities in the Senate. With the always unpredictable Republican Sen. John McCain home sick in Arizona, McConnell must hold together the Republican caucus. He can afford virtually no defections from within his ranks — for example, by moderate senators such as Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska. Arizona Republican Jeff Flake is also a harsh opponent of the president, so his vote is uncertain, as well.

The White House and its allies are fully aware of the pressure that will be brought to bear on the Republican caucus, which is why the president met at the White House with Collins, Murkowski and Senate Judiciary Committee Chairman Chuck Grassley of Iowa last Thursday. Included in that meeting were three key swing-state Democrat senators: Joe Manchin of West Virginia, Joe Donnelly of Indiana and Heidi Heitkamp of North Dakota. All three are from deep red states that were carried handily by Trump in 2016, each is expected to face intense opposition in the upcoming election, and all three voted for Neil Gorsuch in 2017.

Second, the nominee must be able to withstand the coming maelstrom. Vetting will be essential, especially as the left will do everything possible to derail any nominee. This is already shaping up to be the nastiest and most divisive nomination process since 1991 and the appointment of Justice Clarence Thomas.

As with all other modern court nominations, a significant part of the resistance strategy to Trump’s impending nominee will be the battle for public opinion. The new nominee will likely have to prepare for a relentless campaign of personal destruction and scandal mongering to force his or her withdrawal, such as the one unleashed on the late Judge Robert Bork when he was nominated by President Ronald Reagan in 1987 and then against Clarence Thomas.

The ideal strategy for the Democrats and their allies is to force withdrawal deep into the nomination process. Trump would then be left with no time to choose another nominee before the midterms or to have a candidate approved before the start of the next Congress. That scheme presupposes the Democrats winning control of the U.S. Senate. Right now, with 24 Senate Democrats up for re-election, 10 of them in states carried by Donald Trump, the odds are long.

Both sides see the nomination fight as potentially galvanizing their base in a midterm election. It will do nothing to narrow the angry political divide. Let us genuinely pray for civility, decency and fairness. Sadly, in this current climate, that is highly unlikely.

Matthew Bunson is a Washington-based senior editor for the Register.