So who will fill Merrick Garland's Supreme Court seat?

by Ken

There's a good chance, as we knew all through the 2016 presidential derby, that the Supreme Court we now think of as the "Roberts Court" is going to be transformed over the next few years into the "Trump Court."

For now, President Trump has one vacancy to fill, the one that remains because Republicans took one of their more outrageous dumps on the Constitution by refusing to consider former President Obama's nominee, Merrick Garland, to fill the seat vacated by the death of Justice Antonin Scalia. By now you'd figure that all the Republican senators who committed this consitutional outrage would be on Death Row pending appeals of their treason convictions.

And while no one hopes for even the most minimal level of competence or decency in the Trump pick for this seat, which we're told now will be announced February 2 ("We have outstanding candidates. We'll pick a truly great Supreme Court justice"), it changes the High Court only in the sense that it returns it to its status before Scalia's death, as a more or less reliable -- usually depending on the judicial vagaries of Justice "Slow Anthony" Kennedy -- right-wing death machine. Of course this represents a big change from the 4-4 deadlock that has existed on the shrunken court.

According to the sources consuilted by the Washington Post's Supreme Court reporter, Robert Barnes, the hot prospects on the administration's current short list of candidates are judges from four circuits of the federal Court of Appeals. Here are Barnes's backgrounders on the fearsome foursome:

WILLIAM PRYOR, 11th Circuit (Atlanta)

One candidate on the shortlist that probably would not meet [Senate Minority Leader Chuck] Schumer’s test ["It's hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support"] is the one Trump has specifically mentioned.

That is Pryor, 54, a protege of Trump’s choice for attorney general, Sen. Jeff Sessions. Pryor followed Sessions as Alabama’s attorney general and had a contentious Senate confirmation after President George W. Bush nominated him to the bench. Bush eventually made him a rare recess appointment in 2004, and he was finally confirmed by the Senate as part of a compromise deal.

Pryor thrilled supporters at his hearing by not backing away from a previous observation that the Roe v. Wade decision was a constitutional “abomination.” His past comments on gay rights and stalwart support of the death penalty have made him the nominee that liberal groups say they would most fiercely oppose.

He has long been considered the front-runner for the job but lately has drawn fire from some staunch conservatives. Several groups have objected to a decision he joined that upheld the right of a transgender woman to sue over being fired. The appeals court panel based its decision on Supreme Court precedent, but conservative groups said Pryor’s decision was unwarranted.

John G. Malcolm of the Heritage Foundation, one of the groups that supplied Trump with names of potential nominees, defended Pryor in the National Review. Criticism of the judge from the left was expected, Malcolm wrote, but the attack from the right “is a strange development.”

NEIL GORSUCH, 10th Circuit (Denver)

Gorsuch, 49, would not bring the outsider credentials represented by others on Trump’s list. His mother, Anne Gorsuch Burford, headed the Environmental Protection Agency under President Ronald Reagan, and he was raised in Washington. His résumé includes Columbia University, Oxford and Harvard Law.

He is seen as a reliable conservative, with a reputation for clear and lucid writing. His law clerks regularly move on to the Supreme Court — not just for conservative justices but also for liberals such as Sonia Sotomayor and Elena Kagan.

Gorsuch is an originalist, like Scalia, meaning he attempts to interpret the words of the Constitution as they were understood at the time they were written. He is protective of religious rights and found that they could be infringed by requirements of the Affordable Care Act requiring employers to provide contraceptive services.

THOMAS HARDIMAN, 3rd Circuit (Philadelphia)

Hardiman, 51, has more of the backstory Trump might find appealing. He was the first in his family to go to college, and for a time, he drove a taxi to finance his education at Notre Dame and Georgetown University Law Center. He is a lifelong Republican who married into a Pennsylvania family with prominent Democratic roots.

Hardiman serves on the 3rd Circuit with Trump’s sister Maryanne Trump Barry. Conservatives praise his record on gun rights — he dissented from a decision that upheld New Jersey’s restrictive law on who may receive a permit to carry a gun. The Supreme Court declined to review the decision.

But the justices on a 5-to-4 vote upheld one of his decisions that said jails were justified in strip searches for those being committed, no matter the seriousness of the charge.

RAYMOND KETHLEDGE, 6th Circuit (Cincinnati)

Kethledge, 50, is less well-known than the others but is said to have support among senators. He is a University of Michigan graduate who, like Gorsuch, clerked for Justice Anthony M. Kennedy. His nomination was opposed by Michigan’s Democratic senators, but he was confirmed in 2008 as a result of a compromise deal in the Senate.

A Wall Street Journal editorial bestowed “opinion of the year” on a 2014 ruling against the Equal Employment Opportunity Commission. The agency had brought an action against Kaplan Higher Education Corp. alleging discrimination, but Kethledge shot down the testimony of an expert the EEOC had relied upon.

He also ruled for a group called the NorCal Tea Party Patriots in a class-action case the group had filed against the Internal Revenue Service alleging that conservative groups had been targeted.

WATCH FOR A FAMILIAR COMEDY TO PLAY OUT
IN THE NOMINEEE'S CONFIRMATION HEARINGS

Is it really worth pondering which of these picks would be the "least worst"? Meanwhile, the Plum Line's Paul Waldman is looking ahead to the eventual nominee's confirmation hearings.

"By many accounts," Paul writes, "it was the prospect of a Democrat filling that seat that persuaded conservative evangelicals to support Donald Trump en masse, when they might have decided to stay home rather than back a philandering, amoral candidate whose efforts to pander to them were as transparently phony as a $3 bill." That support, Paul says, "according to exit polls," ran to 81 percent of white evangelicals who voted. And now, on this first Trump Supreme Court nomination, they have every reason to think they're going to get what they paid for with those votes.

"There are many issues to be concerned about when the Senate takes up this nomination," Paul writes,

but let’s be honest: We all know that most of the debate is going to be about abortion, specifically whether Roe v. Wade will be overturned. And I can tell you exactly what’s going to happen.

Okay, Paul, we'll bite. Tell us exactly what's going to happen.

Here’s how it will go: Despite the fact that the president has insisted that he will appoint a justice who will vote to overturn Roe, and despite the fact that every conservative interest group will insist that his choice must be a vote to overturn Roe, and despite the fact that it’s in the Republican Party platform to overturn Roe, and despite the fact that nearly every Republican politician wants to overturn Roe, and despite the fact that the nominee will have been chosen only because all those people feel sure he’ll be a vote to overturn Roe, the nominee will go before the Senate and the country and pretend that he has no opinion on whether Roe should be overturned. But he’ll hint that he might vote to uphold it, because it’s a precedent and he has deep respect for precedent, and he has an open mind, so who knows. This will be a lie, but it’s what he’ll say.

And how does Paul know? "Because it’s what Republican Supreme Court nominees always do in their confirmation hearings."

Its most extreme version was embodied by Clarence Thomas, who began with the maybe-I’ll-uphold-it claim. “I believe the Constitution protects the right to privacy,” he said. “And I have no reason or agenda to prejudge the issue or to predispose to rule one way or the other on the issue of abortion, which is a difficult issue.” But then he went even further, saying in response to a question that not only had he not made up his mind about Roe, but he had never in his life even had a conversation about the most controversial legal issue of our age: “Senator, your question to me was did I debate the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not.” There could not have been a single person in America, liberal or conservative, who thought Thomas wasn’t lying.

But it's unusual, Paul says, for a right-wing Supreme Court nominee to go this far.

In its slightly less laughable version, the denial is usually a combination of the following assertions: I don’t want to prejudge any case that might come before the court. Precedent is important. Nothing I said before now applies, because the role of a justice is so unique. My personal views, if I should happen to have any, which I probably don’t, would never enter into my rulings.

Not only Chief Justice "Smirkin' John" Roberts but even the late Justice Scalia shuffled through their versions of what Paul describes as "this absurd charade," which he notes predictably drives Democratic Senate questioners batty,

since everyone knows how full of it the nominee is. So the senators try to ask the question a dozen different ways to see if they can come up with a key that will unlock the truth, and they inevitably fail.

Which particular version of the denial charade can we look forward to? "As it happens," Paul writes, "among the finalists for Trump’s pick, there is one judge, William Pryor, who has an unusually clear record of statements on abortion in general and Roe in particular."

He has been such an outspoken critic of the decision, calling it the “worst abomination in the history of constitutional law,” that it would be almost impossible for him to claim that he might uphold it. Does that mean that he won’t be nominated? To know the answer to that question you’d have to get into Trump’s mind, and who knows what’s going on in there. What we do know is that whoever gets the nomination, he’ll be a vote to overturn Roe. No matter how much he tries to deny it.

#