In fact, with the death of Antonin Scalia in February and the continuing stalemate in the Senate over the nomination of Merrick Garland—a centrist appellate judge—to succeed him, the court’s future is already up for grabs. Assuming that Garland’s nomination dies on the vine, the next president may get to appoint no less than four members of the nation’s most powerful judicial body.
Justices Ruth Bader Ginsburg, Steven Breyer and Anthony Kennedy will all be 78 or older by August. Ginsburg, the eldest of the trio, will turn 84 next March.
This means that unless Bernie Sanders pulls off a last-minute miracle at the Democratic convention in July, or the laws of nature are suddenly suspended, the task of remaking the court will fall either to Hillary Clinton or Donald Trump.
For the progressive left—which largely views both Clinton and Trump as unacceptable—the prospect of either candidate assuming office is depressing. But like it or not, the impact of the election on the court is an issue that progressives will have to confront, no matter whom, if anyone, they decide to vote for come November.
I’ll deal with Clinton and what we might anticipate from her in the way of judicial appointments in a future column. For now, I want to focus on what we could expect from President Trump.
Of all the factors presidents entertain and weigh in the nominating process—and over the decades, the factors have ranged from paybacks in return for past support to considerations of geographic, racial and religious balance—none is more important than ideological compatibility.
No president has ever been above the ideological fray. Each and every one, from George Washington forward, has tried to place like-minded individuals on the bench, both to advance short-term policy goals and to secure long-term legacies. There are few more effective ways for presidents to leave their stamps on history. Supreme Court justices are appointed for life, and they wield enormous power.
What does that augur for a future Trump administration? Would his Supreme Court nominations, like those of his predecessors, reflect his ideology and politics?
Apart from the ubiquitous slogan “Make America great again!”—emblazoned on everything from his website to the red baseball caps he distributes—the presumptive GOP nominee is ideologically a scrambled egg. He’s part angry populist, part xenophobic nationalist, part reality-show huckster, part latter-day Benito Mussolini.
The combination appeals to the millions of rubes who have cast primary ballots for him and to mainstream TV and news outlets that have accorded him virtually unlimited airtime in a shameless pursuit of better ratings.
But surprisingly, there is a coherent set of legal goals in Trump’s ideological scramble. Despite all his chaotic blather and bombast—and notwithstanding his penchant for flip-flops, walk-backs and clarifications—Trump has articulated a multitiered, short- and long-term legal agenda that his Justice Department would likely defend all the way to the highest court in the land. For brevity’s sake, I’ve whittled the agenda down to a dozen key points and initiatives:
- He wants to build a “wall” along the southern border and deport some 11 million to 12 million people who have entered the United States without legal permission.
- He wants to end birthright citizenship for children born in the U.S. to two noncitizen parents.
- He wants to expand the use of torture techniques in the war on terror, advocating methods “a hell of a lot worse than waterboarding,” and he wants to send even more detainees to the prison at Guantanamo Bay.
- He would deny visas to all Muslims seeking legal entry into the United States.
- He wants to repeal Obamacare either legislatively or by means of a new Supreme Court ruling that would overturn the court’s landmark 5-to-4 opinion in 2012, upholding the Affordable Care Act’s “individual mandate.”
- He wants to “open up our libel laws” and reverse The New York Times v. Sullivan decision, the unanimous 1964 ruling that provides journalists and private citizens with First Amendment protections against defamation lawsuits brought by government officials and public figures.
- He would defund Planned Parenthood, ban late-term abortions and select a new Supreme Court justice who may vote to overturn Roe v. Wade.
- He would “consider” appointing justices who would overturn Obergefell v. Hodges, last year’s historic 5-to-4 Supreme Court decision on gay marriage.
- He would defend “religious freedom” against anti-Christian secularists.
- He would disband the Environmental Protective Agency and turn regulation of greenhouse gases, clean water and the like back to the states because he believes that climate change is a hoax.
- He would support voter suppression, and he has recently spoken out against same-day voter registration in the mistaken assumption that it would permit noncitizens to cast ballots in federal elections.
- He would support the idea of paying federal bondholders less than 100 cents on the dollar in order to bring down the national debt.
So who might be the legal lions Trump would install on the high tribunal to champion such causes? The appointment process is never a sure thing, and there are several notable examples of newly installed justices—Republicans Earl Warren and David Souter come immediately to mind—who have gone on to disappoint their executive-branch patrons.
Still, a victory at the polls will bring forth many eager judicial candidates. And although Election Day is still almost half a year away, the vetting process has begun.
In a campaign speech delivered in March, Trump said he would release a catalogue of 10 potential high-court nominees “within a week,” saying he would do so in consultation with the ultraconservative Heritage Foundation.
While he has yet to unveil the list, he has said that in terms of qualifications and temperament, he wants his first appointment to be a judge who is “the closest to Scalia I can find.” He would likewise be thrilled with another Clarence Thomas, whom he has described as his favorite member of the present court. He’s also made clear that he doesn’t want another appointee like John Roberts, the chief justice, whom he has lambasted as a “disgrace” for upholding Obamacare.
To date, Trump has identified three federal appellate-court judges he thinks would be “great” on the Supreme Court.
The first—his older sister, Maryanne Trump Barry, who currently sits as a senior judge on the 3rd Circuit Court of Appeals—wasn’t offered as a truly serious possibility—and for good reason. She’s not only his kin, but she’s also known as a principled moderate and, most important, was elevated to the appellate court by none other than Bill Clinton.
The other two are Diane Sykes of the 7th Circuit and William Pryor of the 11th. Both are serious contenders, and both are strong supporters of voter suppression, Hobby Lobby-style religious freedom and the concept of corporate personhood. They are also staunchly anti-abortion and opposed to gay marriage.
Readers of Truthdig may remember that I profiled Sykes in a November 2013 column entitled “Meet the Worst Judge in America.” The former spouse of right-wing Wisconsin talk-radio host Charlie Sykes (who, ironically, happens to be an archcritic of Trump), Sykes was appointed in 2004 by President George W. Bush. She is an active member of the Federalist Society.
Similarly, Pryor was nominated by George W. Bush. He was confirmed by the Senate, with a vote of 53-to-45, only after a prolonged filibuster. In his former post as attorney general of Alabama, he once decried Roe v. Wade as “the worst abomination in the history of constitutional law.”
Others who have garnered high praise from the Heritage Foundation include federal appeals court judges Brett Kavanaugh and Steven Colloton, both of whom worked with special prosecutor Kenneth Star in the investigation of Bill Clinton that led to the former president’s impeachment.
The Heritage Foundation reportedly has also given a big thumbs up to: conservative Texas Supreme Court Justice Don Willet, a proponent of government-funded, faith-based initiatives who has earned the moniker of “the tweeting judge” for his extensive use of social media; right-wing super lawyer Paul Clement; and Utah Republican Senator Mike Lee. In keeping with his Tea Party orientation, Lee has questioned the constitutionality of Social Security, Medicare and child labor laws, among other fundamental social reforms of the last century.
The addition of any one of the above to the Supreme Court could dramatically alter the balance of power on the court and—without exaggeration—change the course of American history for a generation. If that prospect doesn’t make your head hurt, nothing will.
Author: Bill Blum