New York Times

Trump, Set on an Unwavering Conservative, Pledges Fast Action on Supreme Court

January 12, 2017

by Adam Liptak

WASHINGTON — Pledging to move quickly to fulfill what he has called the most important promise of his campaign, President-elect Donald J. Trump said on Wednesday that he would name a nominee to the Supreme Court “within about two weeks” of his inauguration on Jan. 20.

At a news conference in Trump Tower, he thanked the leaders of two prominent conservative groups for their help in vetting candidates, a strong indication that his main priority remains choosing an unwavering conservative to fill the seat of Justice Antonin Scalia, who died last February.

Democrats are promising a furious fight over any nominee they consider to be out of the legal mainstream, saying that Republicans effectively stole a Supreme Court seat from President Obama by refusing for almost a year to consider his nomination of Judge Merrick B. Garland, a respected appeals court judge with a moderate record.

Mr. Trump had not commented publicly about his plans for a Supreme Court nomination since his election, but in his remarks, he stressed the central role the court had played in his campaign.

“I think it’s one of the reasons I got elected,” Mr. Trump said. “I think the people of this country did not want to see what was happening with the Supreme Court, so I think it was a very, very big decision as to why I was elected.”

In the two months since the election, Mr. Trump and his advisers have been scouring the records and backgrounds of potential nominees, a transition official said.  They now have a list of about a half-dozen names, paring it from the 20 or so that they started with.

The vetting process has sought to identify candidates who are old enough to have established a substantial and consistent record of conservative jurisprudence, young enough to be able to serve on the Supreme Court for two decades or more, and reliable enough not to drift to the left over the years. “I want someone who is not weak,” Mr. Trump told his team, the official said.

Senator Chuck Schumer of New York, the minority leader, said last week that Democrats are prepared to try to keep Justice Scalia’s seat open indefinitely.

Senator Mitch McConnell of Kentucky, the majority leader, responded that it had been proper to maintain the vacancy through Mr. Obama’s final year. But he said anything more was unacceptable.

“Apparently there’s yet a new standard now, which is to not confirm a Supreme Court nominee at all,” he told reporters. “I think that’s something the American people simply will not tolerate.”

Conservatives have repeatedly been disappointed by Republican appointments to the Supreme Court, including Justice David H. Souter, who joined the court’s liberal wing; Justices Anthony M. Kennedy and Sandra Day O’Connor, whose votes could be unpredictable; and Chief Justice John G. Roberts Jr., a conservative who twice wrote opinions rejecting challenges to President Obama’s health care law.

Mr. Trump “wants someone strong, independently minded, not afraid to make tough decisions,” the official said.

The leading candidates share the qualities Mr. Trump has said matter most to him.

“The justices that I’m going to appoint will be pro-life,” Mr. Trump said at the third presidential debate in October. “They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the founders wanted it interpreted.”

Some of the candidates alarm liberal groups, which say they will mount an all-out opposition if Mr. Trump chooses a “lightning rod” like one of the leading candidates, Judge William H. Pryor Jr. of the United States Court of Appeals for the 11th Circuit, in Atlanta. Judge Pryor has called Roe v. Wade, the 1973 decision establishing a right to abortion, “the worst abomination of constitutional law in our history” and has said courts have no business imposing their will on issues like school prayer and gay rights.

Nan Aron, the president of the Alliance for Justice, a liberal group, said her allies were preparing for the possibility of an unsparing effort to stop some potential nominees.

“This could be the biggest fight in the history of Supreme Court nominations,” she said.

Mr. Trump’s advisers say Democrats would be wise to hold their fire, as his first appointment will merely return the Supreme Court to the status quo.

In that case, Justice Kennedy would resume the central role he has long occupied, casting the decisive vote in many closely divided cases. Though generally conservative, he has lately voted with the court’s four-member liberal bloc in major cases on gay rights, abortion and affirmative action.

Should Mr. Trump have the opportunity to replace a second member of the court, however, he could transform American jurisprudence. The prospect is real, as Justice Kennedy is 80 and the senior liberal members of the court are about the same age. Justice Ruth Bader Ginsburg is 83 and Justice Stephen G. Breyer is 78.

“An entire century of progress could well crumble,” Ms. Aron said.

Mr. Trump has repeatedly credited two leading conservative policy groups — the Federalist Society and the Heritage Foundation — with helping to draw up and cull his lists of potential nominees. The first, with 11 names, was issued in May and contains most of the current leading candidates. The second, with 10 names, was issued in September.

John G. Malcolm, a Heritage Foundation official who suggested a number of names that appeared on the first list, said he was confident that Mr. Trump would pick a reliable and consequential conservative to replace Justice Scalia.

“This is an incredibly important vacancy on the court because of the number of important issues on which the court appears to be evenly divided,” he said.

Most of the leading candidates are federal appeals court judges. In addition to Judge Pryor, who is 54, Mr. Trump has singled out Judge Diane S. Sykes, 59, of the Seventh Circuit, in Chicago. She is a favorite of some Federalist Society lawyers, and she conducted a public interview with Justice Clarence Thomas at the group’s annual convention in 2013. But she is on the older side by the standards of recent nominees.

Both candidates have backgrounds in state government. Judge Pryor served as Alabama’s attorney general, and Judge Sykes sat on the Wisconsin Supreme Court.

Other federal appeals court judges under consideration are Steven M. Colloton, 54, and Raymond W. Gruender, 53, both of the Eighth Circuit in St. Louis; Raymond M. Kethledge, 50, of the Sixth Circuit in Cincinnati; Neil M. Gorsuch, 49, of the 10th Circuit in Denver; and Thomas M. Hardiman, 51, of the Third Circuit in Philadelphia.

No sitting State Supreme Court justice has been appointed to the United States Supreme Court since William J. Brennan Jr. in 1956. But Mr. Trump’s lists include several, among them Justice Joan L. Larsen, 48, of the Michigan Supreme Court, and Justice Thomas R. Lee, 52, of the Utah Supreme Court.