Ever since President Trump hit a home run with his selection of Neil Gorsuch to replace Justice Scalia on the Supreme Court, some Trump-skeptical conservatives have fretted that since he's fulfilled that explicit campaign pledge, the president may not be as inclined or determined to select a strong constitutionalist in the event of an additional vacancy. Would he return to the roster of names his campaign released in September, which was widely praised by conservative organizations? Or might he chart a new, unpredictable course? In an interview with the Washington Times, Trump assured right-leaning voters that if another seat opens up during his term, he'll draw his pick from the established list:
Mr. Trump shook the election campaign last year when he announced a list of 21 potential Supreme Court nominees, selected with the help of the Federalist Society and The Heritage Foundation. The list was an instant hit with conservatives and helped cement the candidate’s support among the Republican base. “It’s a great list. From the moment I put that list out, it solved that problem. And I was proud to say it was my idea,” he said. Mr. Trump said he has heard rumors that one of the justices will retire when the current court session ends in June but that he doesn’t have any inside knowledge. “I don’t know. I have a lot of respect for Justice Kennedy, but I just don’t know,” Mr. Trump said, referring to the senior member of the bench, Justice Anthony M. Kennedy. “I don’t like talking about it. I’ve heard the same rumors that a lot of people have heard. And I have a lot of respect for that gentleman, a lot.” Mr. Trump said conservative voters should be assured that his next choice will be “really talented and of our views.” Asked specifically whether he would pick from the list of candidates he put forward in the campaign, Mr. Trump was unequivocal: “Yes,” he said, adding, “That list was a big thing.”
Indeed it was. Evidence suggests that a critical mass of conservative voters, many of whom were deeply mistrustful or put-off by Trump, were ultimately swayed to pull the lever for him in November almost exclusively over fears of a Clinton-populated federal judiciary. After Trump issued, then expanded, his Supreme Court list, the deal was sealed. According to national exit polling, Trump won voters for whom SCOTUS was "the most important factor" by 15 points. As for the 'Kennedy retirement' rumors that Trump briefly touched on, but wisely declined to expand upon, those whispers that we first reported months ago are growing louder. Via CNN:
Friends and associates believe Kennedy is seriously considering retirement. In general, the burdens of age and demands at the court weigh in one direction. His deep interest -- and leading role -- in America's constitutional democracy weigh in the other. The question appears not to be whether Kennedy will retire soon, but when -- at the end of this June, or next? Replacing staunch conservative Justice Antonin Scalia with the likeminded 49-year-old Gorsuch may not change the direction of the court. The political and legal stakes, however, would be dramatically higher if Trump has the opportunity to fill Kennedy's seat. Kennedy, a centrist conservative, has cast a key vote for gay marriage, abortion rights, affirmative action, and fair housing law. Kennedy controls the outcome of cases like no other justice in more than a decade.
Kennedy, 80, often leans to the right -- he believed Obamacare should have been struck down in its entirety -- but has swung left on some major cases on social issues such as gay rights and abortion (on which Kennedy has upheld some restrictions, but has refused to go further toward restoring the overall issue to the people's representatives in the states). Installing a more reliably conservative justice in his place would represent a meaningful ideological shift on the High Court -- an outcome Hillary Clinton pledged to pursue, but in the opposite direction. It's also worth pointing out that two lockstep liberal justices, Ruth Bader Ginsburg (84) and Stephen Breyer (78), are both in Kennedy's age range. Because Senate Democrats chose to once again mount an unprecedented, unilateral escalation in the confirmation wars during the Gorsuch battle, Republicans followed the Reid Rule to ensure that future Supreme Court nominations can be advanced and confirmed with a simple majority in the upper chamber.
Democrats forced the detonation of the 'nuclear option' to strip them of the power to hold a very conservative nominee at bay with their foolish and quixotic attempted obstruction of Justice Gorsuch, so Trump's calculus in making a second (or third) SCOTUS selection should now be even more straightforward: Choose from among a pool of the youngest, strongest originalists available. As for the relevant politics on Capitol Hill, the GOP will control the Senate regardless of whether Kennedy steps aside this summer or next summer, as "friends and associates" reportedly expect. And as we've mentioned previously, even if the 2018 midterms go poorly for Republicans, the Senate map is particularly challenging for Democrats. It would take a very serious blue wave to sweep Chuck Schumer's party into the majority next year (whereas 2020 would be much more realistic). I'll leave you with this development on Trump's first nominee to fill one of many circuit court vacancies around the country:
President Donald Trump's first and, so far, only nominee to federal district or appeals courts sailed through his confirmation hearing Wednesday before the Senate Judiciary Committee. The session, which wrapped up in less than 90 minutes, lacked the tension of the same panel's multi-day hearing on Trump's only other judicial nominee: Supreme Court pick Neil Gorsuch, who was confirmed and sworn in earlier this month. But Amul Thapar, currently a U.S. District Court judge in Covington, Ky., who Trump has nominated to a seat on the U.S. Court of Appeals for the Sixth Circuit, was put on the spot over the president’s recent berating of federal judges whose rulings he dislikes..."I am a proud Article III judge. We've been criticized from the beginning of this great country," Thapar said. "What I will say about me and my colleagues is it doesn't matter to us."
Thapar was elevated to his current position by President George W. Bush. As the story says, he is Trump's only circuit court nominee thus far, prompting some conservative judiciary watchers to implore his administration to pick up the pace. A White House source recently told Townhall that more nominations are in the works, and that Trump will likely overtake the pace set by his two immediate predecessors in the relatively near future. Others are hearing similar things. The Washington Times reports: "Fresh off his successful Supreme Court battle, President Trump will now try his luck stocking the federal appeals court with conservative jurists — and Democrats are mostly powerless to stop him...Circuit courts need nominees for 19 vacancies, and district courts are waiting to fill more than 100 vacancies, but the White House has been slow to announce names." President Obama and Harry Reid stacked lower courts with liberals after the 2013 nuclear option, and Trump now has a golden opportunity to reverse that trend.
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