© 2017 The Texas Lawbook.
By Jason Steed of Bell Nunnally
(Jan. 9) – When the next history of the Supreme Court of the United States is written, several pages will be devoted to Judge Merrick Garland’s nomination and the 2016 presidential election. Some are already calling it the year the Republicans “stole” a Supreme Court seat.
To be sure, the nation has seen fierce battles over Supreme Court nominations in the past. In 1968, for example, just before leaving office, President Lyndon Johnson tried to appoint Abe Fortas to replace a retiring Chief Justice Earl Warren, but conservatives blocked the appointment after Senator Strom Thurmond declared there would be no Supreme Court finagling in an election year. And in 1987, Democrats famously blocked the nomination of Judge Robert Bork on ideological grounds, after holding hearings and voting against Bork’s appointment 58-42 (with six Republican senators joining the Democrats).
But never have we seen anything like 2016.
In 1968, the Fortas nomination involved actual collusion. In June, when it looked like the Democrats would lose the presidential election, Warren agreed to retire so Johnson could pick his replacement before leaving office. Fortas himself was involved in the collusion – and had other serious ethical problems, too. So there were good reasons for conservative senators to block Fortas’s appointment in 1968.
In 1987 – whether they had good reasons for blocking Bork or not – at least the Democrats did their job: they gave Bork a full senate hearing and defeated his appointment with an up-or-down vote, all within four months of his nomination (July-October).
Justice Antonin Scalia died in February 2016. There was no election-year collusion between Scalia and President Obama to give Obama another Supreme Court appointment before he left office. In March, Obama nominated Garland to fill the vacancy – a man both parties agreed was moderate, qualified and beyond reproach.
But the Republicans announced their intent to block Obama’s nominee before they even knew who the nominee might be. And they denied Garland a hearing or a vote for eight months before the November election – longer than any Supreme Court nominee in history. In other words, there was nothing about 2016 that could be compared to 1968 or 1987.
Though the Constitution clearly gives the sitting president the right and duty to fill Supreme Court vacancies, Republicans were hoping to stall long enough for a Republican to win the presidency and thereby prevent the Supreme Court from tilting leftward for the first time in nearly half a century. And the gambit paid off. The Republicans won.
Now Garland will return to his seat on the D.C. Circuit, and President Trump will appoint Scalia’s replacement. Everyone is wondering who Trump will choose, with some reports suggesting that an announcement could come any day. And Trump’s list of possible nominees includes a couple Texans.
Some think the most likely nominee is Judge Neil Gorsuch, from the Tenth Circuit. He’s 49, a Harvard Law grad, and in many ways the most conventional (and, therefore, most predictable) candidate on the list. He’s also an excellent writer, known for his lucid, snappy opinions – so he would be an apt replacement for Scalia.
Other top contenders include Judge Diane Sykes (Seventh Circuit), Justice David Stras (Minnesota Supreme Court), Justice Joan Larsen (Michigan Supreme Court), and Judge Margaret Ryan (Court of Appeals for the Armed Services).
Larsen is a former Scalia clerk, which seems fitting. Stras and Ryan are both former clerks to Justice Clarence Thomas, so if either of them is appointed it would be the first time in history that a justice and his former clerk are both on the Court at the same time. (This almost happened when current Chief Justice John Roberts Chief – a former William Rehnquist clerk – was nominated to take Justice Sandra Day O’Connor’s seat, but then Chief Justice Rehnquist died and Roberts was nominated to replace him instead of O’Connor.)
Justice Tom Lee of the Utah Supreme Court is also on Trump’s list and would be an interesting – and perhaps clever– political choice. Like Stras and Ryan, Lee is a former Thomas clerk. And his father, Rex Lee, served as U.S. Solicitor General in the Reagan administration. Lee would be the first Mormon on the Court and choosing him might be a step toward repairing Trump’s relationship with Mormon voters. Over the past 45 years, Mormons have become reliable Republican voters. According to some polls, roughly 75% of them voted for George W. Bush and roughly 85% of them voted for Mitt Romney. But only about 60% of them voted for Trump. And many voted for him reluctantly, expressing strong distaste for his “locker room talk” and strong opposition to his anti-Muslim and anti-immigrant rhetoric.
For a while, polls even suggested Trump might lose Utah, which has voted Republican in every presidential election since 1968. Appointing Lee to the Supreme Court might repair some of that political damage.
The only Texan on Trump’s official list of candidates is Justice Don Willett from the Texas Supreme Court. Willett is 50 and a Duke Law grad. He’s a devoted conservative, vocal in his support for originalism and states’ rights. Like Gorsuch, he’s an excellent and witty writer. And he’s relatively well-known and popular for a judge, even among non-lawyers, thanks to his large national following on Twitter. Given all this – plus Trump’s own fondness for Twitter – it’s hard not to see Willett as a major contender.
But Willett has been somewhat affiliated with Senator Ted Cruz and the Cruz crew, and it’s unclear how much influence the Cruz crew has with the incoming Trump administration. Cruz and Trump traded nasty attacks on the campaign trail, and Cruz was slow to get behind Trump’s candidacy. Moreover, if the Cruz crew does have any influence with the incoming Trump administration, it’s quite possible they will use it to promote someone other than Willett for the Supreme Court vacancy: namely, Cruz himself.
Cruz is not on Trump’s official list of Supreme Court candidates, but he’s certainly on the unofficial list, if one exists. Many think the Trump administration would prefer to have Cruz on the Court instead of in the Senate, to preclude him from a presidential challenge in 2020. And Cruz has expressed interest in the job. He’s 45, a Harvard Law grad, a former Rehnquist clerk and a former Texas Solicitor General with nine Supreme Court arguments under his belt – so he’s eminently qualified and certain to be considered.
But the most likely nominee might be Judge William Pryor, from the Eleventh Circuit. Pryor is 54 and graduated from Tulane Law School. He once called Roe v. Wade an “abomination.” He once ended a speech by saying, “Please, God, no more Souters.” And it’s been reported he is the favorite of some of the folks at the Heritage Foundation. Perhaps most importantly, Pryor hails from Alabama and is connected to Senator Jeff Sessions of Alabama – Trump’s nominee for U.S. Attorney General. By all accounts, Sessions was a key player in the Trump campaign and is a key player in the incoming Trump administration. So, if anyone has an inside track for the open Supreme Court seat, it’s probably Pryor.
One thing is certain: Trump will pick somebody, and that person will be confirmed by the Republican senate, but it won’t happen fast enough for the new justice to join the Court before the current term is over. So the Court will finish the term with an empty chair and only eight justices – a daily reminder of not only the loss of Justice Scalia, but also the Senate’s Garland Fiasco of 2016.
© 2016 The Texas Lawbook. Content of The Texas Lawbook is controlled and protected by specific licensing agreements with our subscribers and under federal copyright laws. Any distribution of this content without the consent of The Texas Lawbook is prohibited.
If you see any inaccuracy in any article in The Texas Lawbook, please contact us. Our goal is content that is 100% true and accurate. Thank you.