Why Trump's Real Supreme Court Fight Is the Next One - OZY | A Modern Media Company

Why Trump's Real Supreme Court Fight Is the Next One

Why Trump's Real Supreme Court Fight Is the Next One

By Daniel Malloy


Because abortion rights could be on the line before long.

By Daniel Malloy

President Trump is expected to reveal his selection to fill Antonin Scalia’s vacancy on the Supreme Court this week. Then the fun begins: Dirt excavation, senatorial speechifying, marches in the streets, presidential tweets. And the legal challenges surrounding Trump’s recent executive order on immigration only heighten the stakes. But this circus is a mere warm-up act for Act 2: the next confirmation fight.

Two Names to Remember: Robert Bork and Merrick Garland

In 1987, Ronald Reagan nominated Bork, an archconservative federal appeals court judge to replace the moderate Lewis Powell. The Senate Judiciary Committee, then chaired by a fella named Joe Biden, picked apart his record in a process amped up by liberal pressure groups that painted Bork as holding out-of-bounds views on race and gender. He was voted down — an outcome that has become a Washington verb, to get “borked” — and helped accelerate Congress’ ultrapartisan flame wars against presidential nominees, as the nominees themselves have become more circumspect. The opening eventually went to Anthony Kennedy, the swing justice who has sided with liberals to advance gay rights and protect abortion rights.

Trump has already said he would support going nuclear on his forthcoming Court pick.

Last March, Barack Obama nominated Garland to fill the vacancy created by the death of the conservative Scalia. While Garland’s moderate record was supposed to lure Senate Republicans, they instead declined to even hold a hearing, saying the vacancy should be filled by the next president.

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Former Supreme Court nominee Robert Bork listens during a panel discussion.

Source Alex Wong/Getty

Democrats are eager for some Garland payback, but don’t expect them to unanimously oppose Trump’s nominee out of the gate. (And because they’re in the minority, they cannot deny a hearing.) George Washington University political science professor Sarah Binder says Democrats’ willingness to block the nominee rests on their ability to paint him or her as Bork 2.0 — “outside the mainstream of judicial thinking.”


The Nuclear Trigger and the Status Quo

When Democrats were trying to push through Obama’s nominees, they changed Senate rules to allow nearly all to be approved with a simple majority. The 60-vote filibuster threshold remains intact for Supreme Court nominees, but the precedent is there for Majority Leader Mitch McConnell to invoke what’s known as the “nuclear option” to alter the rules again. Trump has already said he would support going nuclear on his forthcoming Court pick. The dance, then, has already begun. Democrats are unlikely to bait the Republicans into going nuclear unless they determine the nominee to be egregious. And in order to make the procedural move to change the rules, Republicans must overcome concerns among institutionalists: Six GOP senators have been in office for at least 30 years, oscillating between minority and majority status.

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U.S. Supreme Court nominee and chief judge of the United States Court of Appeals for the District of Columbia Circuit Merrick Garland (right) and Sen. Jeff Merkley (D-Ore.) greet one another.

Source Chip Somodevilla//Getty

Trump has vowed to pick his nominee from a list of 20 conservative-approved names he released during the campaign. But it’s nigh impossible for Trump to pick a stronger conservative than Scalia, who beyond his votes was a withering inquisitor who wrote colorfully in defense of interpreting the Constitution as the framers intended, leaving a lasting influence throughout the judiciary.

Prepping for Round Two

While Trump’s pick this time won’t shift the Court’s ideological tectonic plates, the next one could be an earthquake. Barring a sudden death, all eyes are on Kennedy, 80, and Ruth Bader Ginsburg, 83. Retirement announcements typically come around when the Court gavels out in June. The fate of many issues that have seen a one-vote margin would be at stake — affirmative action, same-sex marriage — but abortion is going to attract the most attention. Trump has said he would appoint justices who will overturn the legally shaky 1973 Roe v. Wade decision. “We take him at his word,” says NARAL Pro-Choice America national communications director Kaylie Hanson Long.

The group is digging into the women’s rights records of possible justices and will press senators while engaging a million-strong list of “member activists.” The nationwide women’s marches the day after Trump’s inauguration already provided a jolt of energy. Long says NARAL will pay close attention to what questions senators ask of the first Trump nominee, and, if confirmed, how that person rules from the bench. “We’ll be taking all of those things into account for the next one.”

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