Here Are Trump’s Likely Supreme Court Nominees

 As the race to confirm a replacement for Ruth Bader Ginsburg heats up, the White House has hinted at two possible candidates and President Trump has promised to name a woman to replace the popular liberal jurist. One candidate was a finalist for Trump’s last appointment to the High Court while the second possibility is a Latina who might help Trump with Hispanic voters.

On Saturday, President Trump told reporters, “It will be a woman, a very talented, very brilliant woman. I haven’t chosen yet, but we have numerous women on the list.”

The statement, which was reminiscent of Joe Biden’s pledges to pick a woman for his running mate and to appoint a black woman to the Supreme Court, has not been criticized by Republicans, who normally oppose such demographic tests. In fact, a Republican crowd at a Trump rally in North Carolina cheered the idea of a gender-based pick.

A leading candidate for the seat is Amy Coney Barrett, a Seventh Circuit judge from New Orleans, who graduated from law school at Notre Dame. The Seventh Circuit is headquartered in Chicago and Barrett has served in her position there for just under two years after teaching at Notre Dame for two decades.

Barrett was a finalist for the appointment to fill the last opening on the Court. She is a staunch conservative and pro-life judge who once clerked for Justice Scalia. In 2018, she was widely considered to be a bigger threat to Roe v. Wade than Brett Kavanaugh.

Last year, Trump said of Barrett to Jonathan Swann of Axios, “I’m saving her for Ginsburg.”

In the other corner is Barbara Lagoa, who is currently a justice on Florida’s Supreme Court. Lagoa is a Cuban-American, born in Miami, who graduated from Columbia Law School and was appointed to Florida’s Third District Court of Appeal by Jeb Bush in 2006 and the State Supreme Court by Ron DeSantis in 2019.

There are pros and cons for either choice. Amy Coney Barrett has been more closely vetted than Lagoa, which is both a blessing and a curse. Her anti-abortion beliefs are well-known and would be a lightning rod for Democrats and pro-choice Republicans.

Barrett’s short judicial history leaves few opinions for researchers to comb through as they seek to understand her judicial philosophy. One controversial opinion that will come up a lot in the next few weeks was Barrett’s ruling in 2019 that Purdue University’s handling of a sexual assault allegation may have discriminated against the accused man.

On the other hand, Lagoa has a longer history on the bench but no experience in the federal judiciary at all. She has ruled against voting rights for felons and generally been pro-business in her decisions per the Washington Post. One of her most controversial decisions was her ruling that Gov. DeSantis’s firing of Broward County Sheriff Scott Israel for incompetence following the Parkland, Florida school shooting.

With respect to abortion, Lagoa, a Catholic, is generally considered pro-life. However, she did respond to a question from Senator Feinstein last year by writing that Roe was “binding precedent of the Supreme Court and I
would faithfully follow it as I would follow all precedent of the Supreme Court.” She also responded that Roe was “settled law.”

Florida Republicans say that picking Lagoa could win the state for Trump even though Biden has consistently led in polling of the Sunshine State. Even if Trump does pull out a win in Florida, he would still lose the election if he can’t turn things around in other battleground states such as Arizona, Michigan, Pennsylvania, and Wisconsin where polling also shows him losing to Joe Biden.

Either woman would likely be a good pick for conservatives and constitutionalists, but it remains to be seen whether the additional conservative seat on the Court would be worth the collateral damage that confirming Mr. Trump’s pick could cause. Many Democrats, still smarting over the Senate’s failure to act on Merrick Garland, would like to see President Biden make two appointments off the bat by expanding the Court to 11 justices. This would almost certainly require the elimination of the filibuster and could set of a judicial arms race in which both sides expanded the Court whenever they held the White House and the Senate.

The Supreme Court fight might also cost Republicans Senate seats that could be held otherwise. A new Reuters poll found that 62 percent of adults favored allowing the winner of the election to make the appointment. Only 23 percent disagreed, which indicates that even a large number of Republicans want to let the voters decide the fate of the seat.

Donald Trump has typically performed poorly with women voters. A recent poll from Lake Research Partners and Emerson College Polling found that women favored Biden by 11 points, fueling an 18-point gender gap. Republicans hope that the appointment of a female judge will help make up some of that deficit. The net result may be negative, however, when the effect of going against the will of the voters in filling the seat is considered.

The outcome of a confirmation vote is still in doubt at this point. Republican Senators Susan Collins (Maine) and Lisa Murkowski (Alaska) have said that the Senate should not vote on Mr. Trump’s nominee before the election. The assumption is that this means they would not support a Trump nominee at this time. With 53 Republican votes in the Senate and Vice President Mike Pence as the tie-breaker, Republicans can only afford to lose one more senator.

The confirmation battle is still in its early stages. There is much that we don’t know, including who the nominee will be. One thing is certain, however. That is that the process will be contentious no matter who President Trump picks.

Originally published on The Resurgent

Justice Ginsburg Is Back In The Hospital

Justice Ruth Bader Ginsburg is back in the hospital for a “minimally invasive non-surgical procedure” per a spokeswoman for the Supreme Court. Ginsburg, 87, is battling liver cancer but the current procedure is a “revised a bile duct stent” and is apparently not related to her cancer.

“According to her doctors, stent revisions are common occurrences and the procedure, performed using endoscopy and medical imaging guidance, was done to minimize the risk of future infection,” Kathy Arberg, the Court’s spokeswoman said in a statement reported by ABC News.

Ginsburg said in a statement on July 17 that her prognosis is good and that her most recent scan showed a reduction of the existing cancer and no new spots.

“Immunotherapy first proved unsuccessful,” Ginsburg wrote. “The chemotherapy course, however, is yielding positive results. Satisfied that my treatment course is now clear, I am providing this information.”

“I have often said I would remain a member of the Court as long as I can do the job full steam. I remain fully able to do that,” she added.

Conservatives, and particularly pro-life Christians, should pray for Ginsburg’s recovery. This is not only because wishing Ginsburg good health is the decent thing to do as a human being, but because of what effect a lame-duck vacancy on the Court would have on the country.

Depending on when the vacancy occurred, the situation would be different but most possibilities are uniformly bad. If Ginsburg’s seat opened up before the election, it would likely galvanize Democrats to get to the polls to protect the balance of the Court, the same way that Republicans did in 2016 after the death of Antonin Scalia.

If Mitch McConnell and President Trump decided to move forward a Trump nominee, the Republican Party would open itself up to charges of hypocrisy after McConnell’s rebuff of President Obama’s nomination of Merrick Garland. The left would go apoplectic and civil disturbances may well increase.

While conservatives and Republicans have typically approved of Mr. Trump’s judicial nominees, his Supreme Court picks have not been as popular with voters. Both Neil Gorsuch and Brett Kavanaugh were less popular than most nominees with Kavanaugh being particularly unpopular. Ramming through a Trump appointee would not bode well for Republican electoral chances.

Assuming that Republicans could force through a nominee, Joe Biden, the likely presidential victor, would be under intense pressure to take action. If Republicans lose both the White House and the Senate, as seems increasingly likely, there is a Democrat plan to pack the Court by adding justices. This would almost certainly require eliminating the filibuster as well.

If eliminating the filibuster for judicial nominees was the nuclear option, the court-packing plan would be the Death Star world-killer ray option. The fight would be intense and partisan divisions would be further cemented. Any hope for renewed civility and unity would disappear amid tribal rancor the likes of which we cannot begin to imagine.

For the good of the country, we should hope that Justice Ginsburg continues her recovery. A Supreme Court nomination fight needs to be delayed until America is better equipped to handle it.

Originally published on The Resurgent

What If Ginsburg Has To Be Replaced This Year?

Justice Ruth Bader Ginsburg has once again been in the hospital. While her prognosis seems good, questions about the aging justice’s health do lead to questions about what would happen if she had to be replaced before the Supreme Court’s term ends in October or before the presidential election is decided.

For conservatives, the first reaction would be that Donald Trump would have the opportunity to replace Justice Ginsburg with a constructionist justice similar to his appointments of Neil Gorsuch and Brett Kavanaugh. However, the reality would not be so simple.

While the sitting president has the right to fill vacancies on the Supreme Court, any attempt to replace Justice Ginsburg six months before an election would invoke memories of Merrick Garland. In 2016, President Obama appointed Garland to fill the seat of Antonin Scalia, but Senate Majority Leader Mitch McConnell decided not to act on the appointment. In the end, the gamble paid off. Trump won the election and appointed Neil Gorsuch to the seat.

There is one very important difference between Barack Obama in 2016 and Donald Trump in 2020. Since Trump’s party controls the Senate, his nomination would be looked upon more favorably than Obama’s was.

However, Trump’s nominee would still face problems. One obvious obstacle is the antipathy that any Republican-nominated replacement for Ginsburg, a liberal icon, would receive. This is especially true since an additonal constructionist on the Court would tip the balance away from the left. (It would not necessarily tip it toward the Republicans since constructionists tend to base decisions on the law and not on partisan beliefs.)

Another hurdle would be the difficulty of holding confirmation hearings in the midst of a campaign in the midst of a recession in the midst of a pandemic. There would need to be sufficient time for senators to become familiar with the nominee’s background and judicial history.

With the Coronavirus pandemic raging, it might also be necessary to hold virtual hearings. The Supreme Court recently heard arguments via the internet, but such a groundbreaking technical achievement would take time to set up and there would be a good possibility of delays due to technical difficulties. The Senate would probably have to approve groundrules for the use of internet debate.

Per the Congressional Research Service, for nominations between 1967 and 2017, it took a median of 27 days from appointment to the first public hearing. The median time for final action on nominees by the Senate or the president was 67 days, more than two months. The fastest successful confirmation in recent years was John Roberts, who was confirmed in 23 days.

Without the filibuster, Democrats would have no hope of voting down a Trump appointment without Republican help. They could, however, delay and obfuscate as they did in the Kavanaugh nomination. With the stakes so high, the fight would be brutal and dirty.

As the election approaches, a confirmation will be harder and harder to pull off. Senators of both parties will want to hit the campaign trail rather than sitting through hearings on a hot-button issue in Washington. At the moment, it looks as though many Republican Senate seats will be vulnerable so Mitch McConnell will want those senators on the road to defend the Republican majority.

After the election, there would be plenty of time for a confirmation but there is the risk that a lame-duck Senate would not confirm an appointee, especially if Donald Trump is a lame-duck president or if control of the Senate changes hands. It would be difficult to justify ignoring the outcome of the election and pressing forward with a nomination by an unpopular president who might well be on his way out the door.

While many Republicans would have no ethical qualms about confirming a Trump appointee under those conditions, even coming only four years after Merrick Garland and the notion that voters should decide the fate of the open Supreme Court seat, there is a good chance that some would. It would only take the defection of three Republicans to scuttle the nomination and those who had just been fired, thanks in large part to Donald Trump, might not be in the mood to do the president or the party any favors. Those who want the possibility of a future in politics might think twice before crossing the voters who had just shown them the door.

If Mitch McConnell could corral his caucus and keep the confirmation short, a justice could be confirmed but what then? If Republicans replace Ginsburg with a Trump-appointee, the left would be apoplectic. If this happens before the election, the resulting anger may fuel Democratic engagement and lead to a blue wave election.

A similar effect was seen in 2018 when the treatment of Brett Kavanaugh was credited with getting Republican voters fired up. The Republican anger didn’t stop that year’s blue wave, but it did blunt the losses in the Senate.

A second possibility is that Democrats might be emboldened to use an FDR-era strategy to overcome the conservative advantage on the Court. Several Democratic presidential candidates have already endorsed a “court-packing” plan that would expand the Supreme Court to as many as 15 seats. The new justices would, of course, be appointed by a Democratic president and confirmed by a Democratic Senate if things go according to their plan.

While the Constitution establishes the Supreme Court, it does not specify how many justices make up the Court. Congress established the number of justices by legislation. There were originally six justices but the number has been changed several times. The present configuration of nine justices has been in place since 1869. In 1937, Franklin Roosevelt tried to overcome a Supreme Court hostile to his New Deal by mandating retirements for justices and adding new seats.

Roosevelt’s plan was unpopular in both parties and failed, but some Democrats are ready to revive the strategy. They see the failure to confirm Garland as well as numerous other Obama appointees to lower courts as a departure from congressional norms that gave Republicans an unfair advantage. Although the Republican strategy was not illegal, if the truth were known, conservatives would feel the same way if the roles were reversed.

Even though many Republicans no doubt hope that Donald Trump will be able to replace Justice Ginsburg with a judge of his own choosing, it seems that the country would be better served by having the debate over a new justice in calmer times and with cooler heads. While I disagree with many of Justice Ginsburg’s decisions, I do wish her good health… for the good of the country.

Originally published on The Resurgent

She’s Ba-ack! Ruth Bader Ginsburg Returns to Supreme Court

Supreme Court Justice Ruth Bader Ginsburg is slated to return to work tomorrow. Ginsburg has been absent from Court functions since early December when she underwent surgery to remove cancerous masses from one of her lungs.

Ginsburg, who was appointed by President Bill Clinton in 1993, broke three ribs in a fall last November. Her cancer was found as a result of tests after treatment for the broken ribs. She was previously treated for colon cancer in 1999 and pancreatic cancer in 2009. She also received a stent to improve blood flow in her right coronary artery in 2014.

Ginsburg has become the focus of much angst from both the left and the right. After the appointments of Neal Gorsuch and Brett Kavanaugh to the Court by President Trump, liberals rallied around Ginsburg in hopes that the 85-year-old justice would not be forced to resign before 2020. A 2018 movie even detailed Ginsburg’s early career as an attorney who worked against gender discrimination.

On the other side of the political spectrum, Ginsburg’s illness and subsequent absence have fueled speculation and conspiracy theories. When she did not make public appearances for several weeks, conspiracists on the right began to claim that Ginsburg was actually dead, but that her death was being kept secret to deny Donald Trump a third Supreme Court appointment.  

As Ginsburg returns to work, the Court has an easy week. The justices will hear only two 60-minute arguments. On Tuesday, the Court will hear Return Mail Inc. v. USPS, a case that asks whether government agencies can challenge private patents, and Mission Product Holdings Inc. v. Tempnology LLC, a trademark licensing case.

As a conservative and a constitutionalist, I often find myself at odds with Justice Ginsburg’s opinions on Supreme Court cases. Nevertheless, as a fellow human who abhors cancer, I wish her good health. While I would not be unhappy to see Justice Ginsburg retire, I cannot find it in myself to participate in the tinfoil hat crowd’s deathwatch.  

Originally pubished on The Resurgent