President Trump says he plans to announce his pick for the U.S. Supreme Court next week.
The Trump administration has begun to float specific names for the high court’s vacancy. The consensus seems to be that among the finalists on Trump’s shortlist are Neil Gorsuch, a judge on the federal appeals court based in Denver; Judge William H. Pryor Jr. of Alabama, who served on the federal appeals court based in Atlanta; and Judge Thomas Hardiman of Pittsburgh, who serves on the 3rd Circuit Federal Court of Appeals.
All were appointed to their current positions by President George W. Bush and are considered hardcore conservatives, but there the similarity ends.
Gorsuch, 49, is considered a cerebral proponent of “originalism,” the idea that the Constitution should be interpreted as the Founding Fathers would have more than 200 years ago, and of “textualism,” the idea that statutes should be interpreted literally, without considering the legislative history and underlying purpose of the law. The Colorado native is Ivy League-educated, and while in undergraduate school at Columbia University, co-founded a newspaper aimed at rebutting what he considered the dominant liberal and “politically correct” philosophy on campus. A graduate of Harvard Law School, he also earned a doctorate in legal philosophy at Oxford University, where he studied as a Marshall scholar.
In private practice, he represented mostly corporate clients, and in 2005 he became principal deputy associate attorney general in the Bush administration Justice Department. A year later he was nominated to the 10th Circuit Court of Appeals, where he has earned a reputation as a scholarly conservative with a flair for writing vividly that is similar to — though perhaps not as sharp in tone as — Justice Antonin Scalia, the conservative icon whose death last year created the current Supreme Court vacancy.
Though Democrats would very likely oppose a Gorsuch nomination in large numbers, he is seen as less of a lightning rod than Judge Pryor, who famously called Roe v. Wade, the Supreme Court’s 1973 abortion decision, “the worst abomination of constitutional law in our history.”
Educated at Northeast Louisiana University and Tulane Law School, Pryor, 54, is a protege of Trump’s nominee for attorney general, Sen. Jeff Sessions. When Sessions served as Alabama state attorney general, Pryor was his deputy and succeeded him when Sessions was elected to the U.S. Senate.
As state attorney general, Pryor filed a brief that supported the right of states to make consenting private homosexual conduct a crime. “The states should not be required to accept, as a matter of constitutional doctrine, that homosexual activity is harmless and does not expose both the individual and the public to deleterious spiritual and physical consequences,” Pryor wrote in the brief.
Pryor’s nomination to the federal appeals court in 2003 was blocked by Senate Democrats until President Bush gave him a temporary appointment while the Senate was in recess. Thereafter, he was confirmed in a deal brokered by centrist Republicans and Democrats that allowed some pending nominees to go through, but not others.
Pryor, a devout Roman Catholic, is a particular favorite among evangelicals and other social conservatives, but he was criticized by some conservative activists when, as state attorney general, he led the charge in removing Alabama’s chief justice for refusing to obey a federal court order to take a Ten Commandments monument out of the courthouse.
A Pryor nomination would undoubtedly spark a major confirmation fight — a fight that Democrats are itching for. They are angry over the nearly yearlong refusal by Republicans to consider President Obama’s nomination of Merrick Garland, a stalling tactic that set a historic precedent.
A third short-lister is Judge Hardiman, educated at Notre Dame and Georgetown Law School. Like other potential nominees on the short list, the 51-year-old has a conservative record, in his case with particular emphasis on the rights of gun owners.
Regardless of which judge is picked by President Trump for nomination to the nation’s highest court, none would change the 5-to-4 conservative majority that has prevailed, for the most part, for decades; anyone Trump nominates would be replacing Justice Scalia — in short, a conservative for a conservative.
It is the next Trump Supreme Court nomination that very likely would change things dramatically, converting a conservative 5-to-4 majority that sometimes flips the other way when one of the conservatives, usually Justice Anthony Kennedy, votes with the court’s four liberals to make a more liberal majority. With one more appointment, there would be a 6-to-3 majority, a vote to spare. And lots of long-standing precedents could fall, including Roe v. Wade.
Indeed, the actuarial possibility of that happening is considerable. Justice Ruth Bader Ginsburg, the court’s leading liberal, will turn 84 in March; Justice Anthony Kennedy, the court’s so-called swing justice, is 80; and Justice Stephen Breyer, another of the liberal justices, is 78. So it is entirely possible that Trump could get two or three more appointments, leaving just two liberal justices on the court and providing conservatives with an overwhelming majority that could dramatically change the law for generations to come.