Supreme Court pick presents another governing choice for Trump


Whenever President Trump sensed that he was losing Republican support during the 2016 campaign, he often responded with just two words: Supreme Court.

Perhaps no other cause motivates the Republican coalition as does preserving the balance of the high court.

Trump has promised to announce Tuesday night his choice to replace Justice Antonin Scalia, who died last February, aiming for another high-profile opportunity to try to deliver on his campaign promises.


Because Scalia was a stalwart conservative, Trump’s choice is not likely to change the balance of the court. But it does set the stage for a bruising partisan fight over a nominee who could help determine law on gun rights, immigration, police use of force, transgender rights and other issues.

Trump will also make a choice about where to direct his White House after a chaotic and divisive week: whether to bring skeptical Republicans back into the fold with a nominee they can embrace, or to name a fringe pick who would launch the party into yet another pitched battle while his administration is waging fights on multiple fronts.

Few doubt that Trump will nominate a conservative. And there’s little question that Senate Democrats will put up a fight. But from the list of 20 potential choices that Trump had promised to choose from, some are more likely to provoke Senate warfare than others.

Barring further changes to the Senate filibuster rules — which GOP leaders for now seem reluctant to make — Trump will need to sway at least eight Democrats to ensure the major political victory that a successful confirmation can often bring.

From the list of potential Supreme Court choices Trump offered during his campaign, three have emerged as leading finalists: Judge Thomas Hardiman of the U.S. 3rd Circuit Court of Appeals, Judge Neil M. Gorsuch of the 10th Circuit Court of Appeals, and Judge William H. Pryor Jr. from the 11th Circuit Court of Appeals.

Of those three, Pryor is seen as the most likely to test a closely divided Senate. Pryor, the former Alabama attorney general, called the landmark Roe vs. Wade decision legalizing abortion the “worst abomination in the history of constitutional law,” one of several blunt pronouncements he made before he was confirmed to his current post.

Pryor is also a protégé of Alabama Sen. Jeff Sessions, Trump’s nominee for attorney general, who is himself a lightning rod for Democrats. Pryor was filibustered by Democrats when first nominated for a judgeship in 2003, only winning final confirmation years later after a bipartisan Senate deal ended a similar clash between then-President George W. Bush and Democrats over the makeup of lower courts.

Gorsuch, by contrast, was confirmed in 2006 without opposition. While his opinions make clear his conservative bent, supporters view him as more personable and more likely to be confirmed.

And in Hardiman, who has a blue-collar upbringing and would be the only sitting justice without an Ivy League degree, the image-conscious Trump may see a smoother political path.

Many presidents have had to fill Supreme Court vacancies in the first year of a new term, but there’s little precedent for the situation Trump is in — facing a vacancy on day one, held over from the previous administration at a time of acute partisanship.

Democrats remain outraged at the GOP’s refusal to grant a hearing, let alone a vote, to the man President Obama nominated in March to fill the Scalia vacancy, Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia circuit.

Liberal activists have already begun to take aim at Democrats who voted to advance some of Trump’s Cabinet appointees, and are likely to bring even greater pressure to bear given the consequential nature of recent Supreme Court decisions in preserving abortion rights, extending marriage rights to same-sex couples and twice upholding the constitutionality of the Affordable Care Act.

Trump took office as the least popular newcomer to the Oval Office in history, and already a majority of voters in a Gallup tracking pool disapprove of his job performance. And now his controversial executive action to temporarily ban admitting refugees from seven predominantly Muslim nations has put his fellow Republicans on the defensive.

The Senate’s top Republican, Majority Leader Mitch McConnell (R-Ky.), offered preemptive advice to Democrats on Monday, noting that neither President Clinton’s first two nominations nor Obama’s were filibustered by the GOP.

“The Senate should respect the result of the election and treat this newly elected president’s nominee in the same way the nominees of other newly elected presidents have been treated — and that is with careful consideration followed by an up-or-down vote,” he said from the Senate floor.

Twitter: @mikememoli