President-elect Donald Trump now has a chance to recast the Supreme Court, steering it to the more youthful right for years to come.
A short-handed, eight-member court that currently has three justices aged 78 or older will be replenished by one or more conservative nominees likely to be in their 50s, or even younger.
But Senate Democrats, embittered over the GOP’s deep-freeze treatment of Judge Merrick Garland, can still fight a rear-guard action. One result may be vicious fights that, given the stakes, could even go, in the Senate parlance, nuclear.
“The justices that I am going to appoint will be pro-life,” Trump promised at the third presidential debate. “They will have a conservative bent. They will be protecting the Second Amendment.”
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Two of the oldest current justices, Stephen Breyer and Ruth Bader Ginsburg, are Democratic appointees and generally reliable liberal votes. A third member of the court, 80-year-old Justice Anthony Kennedy, is a Republican appointee who has swung left on some key cases.
Replacing any of these three would significantly tilt the court rightward
Kennedy, for instance, joined the court’s liberals last June in a decision, denounced at the time by the Trump supporters who oppose women’s right to an abortion, that struck down restrictive Texas rules governing clinics that provide the medical service.
Neither abortion rights nor gun control, though, comprise a significant part of the Supreme Court’s docket, which is typically limited to about 75 cases each term out of the 8,000 or so petitions presented.
None of the sitting justices has given any public indication that they are nearing retirement. While justices often set their resignations so their successors can be named by a president of the same party, the timing of their departures is not always in their own control.
Garland, at any rate, is the first Supreme Court-related casualty of Trump’s election. The highly respected 63-year-old chief judge of the U.S. Court of Appeals for the District of Columbia Circuit was nominated to the high court 238 days ago as of Wednesday.
Although Senate Republicans insisted it should be up to the next president to replace the late Justice Antonin Scalia, who died last February, some lawmakers had held out hopes for a post-election confirmation if Clinton won. Clinton’s loss dashed those dreams.
In ABC News exit polls, about one in five voters called Supreme Court appointments “the most important factor” in their presidential decision. These voters were more likely to favor Trump.
“The people deserved to be heard yesterday, and their voice was unmistakable,” said Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, on Wednesday.
Trump already has identified 20 judges, along with Utah Republican Sen. Mike Lee, as a potential bench from which he might draw a nominee. The potential candidates come from a mix of federal and, unusual for the Supreme Court, state judicial positions.
I don’t think we should have justices appointed that decide what they want to hear. It is all about the Constitution . . . the way it was meant to be.
Lee is 45, underscoring the relative youth that presidents often in seek in naming a justice who can reshape the law for several decades.
Another potential nominee identified by Trump, Kentucky-based U.S. District Judge Amul Thapar, is 47. Another potential Trump nominee, Texas Supreme Court Justice Don R.Willett, is 50.
“They will interpret the Constitution the way the founders wanted it interpreted, and I believe that’s very important,” Trump said.
Trump’s initial appointee could have an obvious impact on issues where the post-Scalia court has deadlocked four-four, thus leaving intact lower court decisions but setting no national precedent.
These previously deadlocked cases that could eventually return to a reshaped Supreme Court include challenges to the Obama administration’s immigrant deportation policy and to union fees imposed on non-members by the California Teachers Association.
First, though, the individual whom Trump taps for the former Scalia seat will face a Senate where 52 Republicans will hold a slim majority over 46 Democrats and two independents. The GOP advantage is short of the 60 votes necessary to overcome an endless filibuster, if one happens to be launched against the nominee.
Senate Republican leaders, in turn, could conceivably try to curtail the minority party’s filibuster power through a change in Senate rules sometimes dubbed the “nuclear option.” Then-Senate Majority Leader Harry Reid did this in 2013, ending filibusters for judicial nominations below the level of the Supreme Court.
“Democrats won’t be in power in perpetuity,” said Sen. Richard Shelby, R-Ala., warned at the time.
Beyond the Supreme Court, Trump will have an opportunity to fill myriad lower-level judicial positions. There are currently 13 appellate judge vacancies, 81 district court vacancies and eight openings on several specialized courts, according to the Administrative Office of the U.S. Courts.
CORRECTION: An earlier version of this story misstated the number of Republicans in the Senate. The correct number is 52.