By Ese Olumhense
In a prime-time event on Tuesday night (5 p.m. Pacific), President Donald Trump is expected to name his pick for the vacant seat on the United States Supreme Court. The nominee would fill the ninth seat on the high court vacated by ardent conservative Antonin Scalia, who died in February, and for which the Republican-held Senate refused to consider then-President Barack Obama’s nominee, Judge Merrick Garland.
Trump’s 21-person shortlist of candidates, the first half of which was released in May 2016, has reportedly been winnowed to three potential finalists: federal appeals court judge Thomas Hardiman of Pittsburgh; Judge William H. Pryor Jr. of Alabama, of the federal appeals court in Atlanta; and federal appeals court judge Neil Gorsuch from Denver.
All share a few similarities: they are all staunch conservatives, like Scalia; they were all appointed by President George W. Bush; and are all fairly young for Supreme Court nominees. Gorsuch is 49, Hardiman is 51, and Pryor is 54.
Gorsuch is widely considered the leading candidate. The son of Anne Gorsuch Burford, the former head of the Environmental Protection Agency under President Reagan who was held in contempt of Congress and resigned under intense criticism, Judge Gorsuch was nominated to the federal bench in May 2006 after serving in the Bush-era Justice Department for two years.
Gorsuch’s legal record is sparser than Hardiman’s or Pryor’s, but what does exist closely mirrors Scalia’s legal thinking. An admirer of the late justice, he fondly regarded him as a “lion of the law.” He has written decisions that are critical of government regulations and in favor of religious freedom, and in 2013 sided with Hobby Lobby and other businesses and organizations religiously opposed to Affordable Care Act requirements mandating that employers provide contraception in their health insurance plans. The Supreme Court upheld that decision the following year.
Gorsuch is considered by conservatives to be pro-life. In 2006, he authored a book which criticized the legal arguments for assisted suicide and euthanasia. His arguments were “based on the idea that all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong,” a view that closely mirrors the position held by the religious right. He is a graduate of Harvard Law School.
Hardiman was nominated to his federal judgeship in 2007, and was confirmed by the the Senate 95-0 and is seen as a dark-horse candidate that Trump might buck his advisers and nonetheless pick. He is a favorite of Trump’s sister, Maryanne Trump Barry, who also became a judge on the 3rd Circuit in 2007.
Hardiman came from a working-class background and was the first in his family to graduate from college; he drove a taxi to help fund his legal education at Georgetown University—which, if confirmed, would make him the only justice on the court without an Ivy League law degree.
Hardiman’s legal record is quite conservative, with decisions reflecting an originalist reading of the Constitution. Originalists believe the Constitution has a static meaning, and interpret it strictly as it was written. Scalia was a major proponent of originalism. As a federal judge, Hardiman penned an opinion upholding strip searches in prisons, even for minor crimes, and has closely adhered to the Second Amendment in his opinions on the right to bear arms including in 2013, when he joined the dissenting opinion in a case which upheld stricter handgun laws in New Jersey.
Pryor is probably best known for his criticism of the Supreme Court’s decision in Roe v. Wade, which legalized abortion, as “the worst abomination in the history of constitutional law.”
Like Hardiman, Pryor did not go to an Ivy League law school, but instead graduated from Tulane University Law School in New Orleans in 1987. He then clerked for Judge John Minor Wisdom, a federal appeals court judge in the 5th Circuit. In 1997, he became attorney general in Alabama, when then-attorney general Jeff Sessions was elected to the U.S. Senate, and was later elected to the position in 1998 and again in 2002. During his tenure as attorney general, he was best known for removing controversial judge Roy Moore from the bench for refusing to take down a 2.6-ton Ten Commandments monument from the Alabama Supreme Court building.
Since being nominated and confirmed as a federal judge in 2003, Pryor has often ruled against death penalty inmates seeking relief from their death sentences, siding with the state in the majority of his decisions. He ruled that a U.S. Supreme Court decision barring automatic life sentences for juvenile offenders should not be applied retroactively, something the high court later reversed. Pryor also wrote the majority opinion in a 2009 decision upholding voter identification laws, which were being challenged as suppressing the rights of minority voters.
Trump’s pick could, of course, be none of the above, but one thing is certain: Tuesday’s announcement is likely to reinvigorate an ugly Senate debate over confirming Supreme Court nominees.
After Scalia’s death, Republicans—who held a majority in the Senate—denied a confirmation hearing and, in many cases, refused to even meet with Obama’s choice of Garland. Democrats have said that they will filibuster any Republican call for a vote on Trump’s new nominee.
“The refusal of Republicans to hold a hearing for Merrick Garland makes it fairly easy to unite Democrats against [any Trump] nominee,” said Scott Lemieux, a writer and professor of political science at the College of Saint Rose, where he focuses on the Supreme Court and constitutional law.
“This is a Supreme Court seat that was stolen from the previous president,” Brad Woodhouse, a top Democratic strategist, told The New York Times.
Any Democratic filibuster of Trump’s nominee would take 60 votes to break, and the GOP only has 52 seats in the Senate. Alternatively, Republicans could amend Senate rules to further limit the use of a filibuster by the minority party, like Democrats did in 2013, but Republican Majority Leader Mitch McConnell, unlike his Democratic predecessor Harry Reid, said this week that he had no interest in eliminating the filibuster.
To try to peel off enough Democrats to prevent a filibuster, Trump is expected to nominate a “safe pick” — a conservative justice who embraces an originalist view of the Constitution, but is measured in his criticism of liberal issues, according to Lemieux. That would make someone like Gorsuch a frontrunner, who Lemieux calls “basically a clone of Scalia,” since the judge is more careful in his public statements than someone like Pryor. On the other hand, Lemieux says, Pryor would appeal to social conservatives, a group that Trump’s Administration seeks to galvanize.
While the war over this “stolen seat” plays out in Congress, the high court remains ideologically fractured, with four conservative-leaning justices (Alito, Roberts, Thomas, and Kennedy) and four more liberal ones (Ginsburg, Kagan, Sotomayor, and Breyer). Given that they are often divided in their decisions, the lack of a tie-breaking vote has meant that some decisions had to be left in the hands of lower courts or decided on very narrow grounds.
If Democrats do succeed in filibustering Trump’s nomination without convincing McConnell to eliminate the filibuster, the Court could continue to be hobbled in its decision-making, at least until another justice resigns or passes away.