Republicans' Senate Tactics Leave Trump Wide Sway Over Nation's Courts

Nov 9, 2016
Originally published on November 9, 2016 9:51 pm

If Tuesday's election determined who would control the two elected branches of government, it also determined who would control the unelected third branch of government — the judiciary.

First, the vacancy created by the death of Justice Antonin Scalia last February will be filled by President Trump's nominee, not by President Obama's. Obama's nomination of Merrick Garland died with the election returns, in essence vindicating the unprecedented confirmation policy of obstruction adopted by Senate Republican leader Mitch McConnell.

"I said in February of this year, to a hail of controversy, that I thought it best that the American people decide who made this appointment to the Supreme Court," McConnell said Wednesday. "And so the American people have spoken."

As to whom President-elect Trump might pick and what the process will be, we know at once a lot and a little.

During the campaign, Trump issued two long lists of potential nominees, put together largely by the conservative Heritage Foundation. The lists were, to a person, very conservative, but were remarkable for who was missing — some of the most distinguished conservative judges and lawyers in the country. Among them: Paul Clement, the George W. Bush administration solicitor general who, as a private lawyer, represented conservative challengers to many of the Obama administration's most controversial policies; Brett Kavanaugh, an appeals court judge who carried the limited government banner on the U.S. Court of Appeals for the District of Columbia; and Jeffrey Sutton, the judge who wrote the only appeals court decision in the country upholding state laws banning same-sex marriage.

There has never been any guarantee that Trump will limit his choices to his campaign lists. Indeed, when released the lists were viewed as a way of quelling the fears of religious and social conservatives.

Conservatives note that there are names on Trump's lists, such as federal appeals court judge William H. Pryor, Jr., of Alabama, who would have strong support among GOP evangelical voters — and from an important early Trump supporter in the Senate, Jeff Sessions of Alabama.

And it is unclear who, if anyone, outside the Heritage Foundation orbit will be advising Trump on the Supreme Court pick. GOP Senate leader McConnell did say Wednesday that he and other Republican senators have views.

"I've got a few suggestions I'd like to make, and I think he's open to our suggestions," he said, adding that "I think it's the way it ought to work."

Democrats likely will have no input — there is no need to extend an olive branch to the other side, as there was when President Obama picked Merrick Garland, in part because Republicans controlled the Senate.

Obama was explicit about one of the reasons he picked Garland: For years Republicans had suggested him as the democratically appointed lower-court judge they favored, the one they could live with. That solicitude for the opposition party's views is not being replicated now because Republicans still control the Senate, and have little need for Democratic support.

True, the filibuster rule is still in place for Supreme Court nominees, requiring 60 votes to end debate — considerably more votes than Republicans will have in the Senate. But if there were a Democratic filibuster, Republicans would almost certainly would change the Senate rules, just as Democrats would have done if they had prevailed on Election Night.

In the short run, Trump will have more than 100 other judicial nominations to make to the lower federal courts. There are 103 judicial vacancies on the federal trial and appellate courts, or roughly an eighth of the entire federal judiciary. There are 59 pending Obama nominations to fill a majority of those seats, but Republicans have been artful about slow-walking these Obama lower court appointments, and the Republican Senate has confirmed only 11 judges since the beginning of the year. Now all of those pending appointments will die.

If history is any guide Republicans will abandon — as they have before — traditional protections for the minority party, meaning that the views of opposition party senators will not be considered in the appointment of judges, even from states where both senators are Democrats. Senate Democrats, even when they controlled the Senate, did honor those GOP views, but Republicans have forsaken that traditional accommodation in recent times.

In the longer run, the focus could well return quickly to the Supreme Court if there are more vacancies — a distinct possibility. Justice Ruth Bader Ginsburg, appointed by President Clinton, is 83; Justice Anthony Kennedy, a center-right justice appointed by President Reagan, is 80; and Justice Stephen Breyer, a Clinton appointee, is 78.

For the past half-century, until Justice Scalia's death, the Supreme Court has had a majority of Republican-nominated justices, with a 5-to-4 conservative majority prevailing for decades in the majority of closely divided cases. A conservative filling the Scalia vacancy would return the court to that narrow, 5-to-4 conservative domination. But with as many as three more vacancies possible in the next four years, that conservative domination could become overwhelming for generations to come.

The result could well be the reversal of Roe v. Wade, the court's 1973 abortion decision; a court more hostile to the regulation of Wall Street; a court far more deferential to religious objections to anti-discrimination laws; and many more such dramatic legal turns to the right.

Particularly interesting will be how the Supreme Court's view of presidential power evolves. In the eight years of the Obama administration, the court's conservatives have demonstrated an unusual and deep suspicion about executive power, while the court's liberals have shown relative deference. It will be interesting to see if that changes when the president is a Republican with an agenda, instead of a Democrat.

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Last night's election directly affected the two elected branches of government, the presidency and Congress. Republicans will soon control both. What of the third branch, the judiciary? Joining us to talk about that is NPR legal affairs correspondent Nina Totenberg. Nina, welcome to the studio.

NINA TOTENBERG, BYLINE: Nice to see you, Audie.

CORNISH: Well, let's start with the Supreme Court because the vacancy that's remained unfilled since the death of Justice Antonin Scalia nine months ago was a major topic of this campaign.

TOTENBERG: Well, the unprecedented policy adopted by Senate Republican Leader Mitch McConnell has in essence been vindicated as he said at a press conference today on Capitol Hill.


MITCH MCCONNELL: I said in February of this year to a hail of controversy that I thought it best that the American people decide who made this appointment to the Supreme Court. And so the American people have spoken.

CORNISH: Do we know who President-elect Trump might pick, what that process would be, how soon? I have a lot of questions here, you know, like, what the Democrats' reaction will be.

TOTENBERG: Well, we know at once a lot in a little, Audie. Trump issue two long lists of potential nominees during the campaign, both put together largely by the folks at the conservative Heritage Foundation. The list was to a person, a very, very conservative one. But it also was quite remarkable for who was missing, namely some of the most distinguished conservative judges and lawyers in the country.

And there never was any guarantee that Trump would pick from that list or either list. It was in many ways - they were lists aimed at quelling the fears of religious and social conservatives in the Republican Party. And he may still want to do that.

CORNISH: So who's advising him on this?

TOTENBERG: We really don't know. Senate Majority Leader McConnell today made clear he has views, as do other Republican senators.


MCCONNELL: I've got a few suggestions I'd like to make that I won't mention to you. But I - you know, I think he's open to our suggestions about that, and I - that's good. I think it's the way it ought to work.

TOTENBERG: You'll notice he did not suggest Democrats would have any input. Republicans don't have to do that. President Obama picked Merrick Garland because he was the Democratic appointee that Republicans for years had said was the person on the Democratic list that they thought they could live with - in short, the best they thought they could get.

And Republicans controlled the Senate, so Obama picked in Garland. You aren't hearing that kind of solicitude for Democrats' views from Trump right now because the Republicans still control the Senate.

CORNISH: Right. I mean could Democrats filibuster the appointments? I mean it takes 60 votes to break a filibuster, and Republicans won't have that many.

TOTENBERG: If there's a Democratic filibuster, I would imagine the Republicans would change the Senate rules just as the Democrats would have done if they had won control of the Senate and had a Democratic president.

CORNISH: I want to turn for a moment to the lower courts. What happens with all those vacancies?

TOTENBERG: Well, there are currently 103 judicial vacancies. That's about an eighth of the federal judiciary. There are 59 Obama judicial nominations pending that will now die. Republicans have been incredibly artful about slow walking these lower court appointments. Indeed the Republican Senate has confirmed only 11 judges since the beginning of the year.

So now Trump, once president, will have all those lower court vacancies to fill, too. And I think you can expect the Senate Republicans to revamp the rules on these lower court nominations so that the traditional views of senators from the opposition party in each state are not considered.

CORNISH: And before I let you go, the Supreme Court docket - could that change?

TOTENBERG: It could change very quickly. Some of the big cases that are pending involve executive rules promulgated by the Obama administration. Some you can get rid of quickly - probably the transgender bathroom rule and immigration. But a lot of others, you simply cannot.

CORNISH: That's NPR's Nina Totenberg. Nina, thank you.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.