More Trump Chaos: Plans Supreme Court Nomination Tuesday as Unconstitutional Immigration Crisis Continues
On Tuesday, Donald Trump will open a new front in the political battles that have begun to besiege his presidency by naming his first Supreme Court nominee.
Trump's announcement quickly prompted some Democrats to draw defiant lines in the sand, as it follows the Republican-led Senate's refusal to act for nearly a year on President Obama’s nominee, after Justice Antonin Scalia died.
“This is a stolen seat. This is the first time a Senate majority has stolen a seat,” Sen. Jeff Merkley, D-OR, said Monday, pledging to block it. “We will use every lever in our power to stop this.”
“When it comes to the Supreme Court, eight [justices] is enough,” said Rep. Keith Ellison, D-MN, who is a leading contender for Democratic National Committee chair. “They literally stole a Supreme Court justice from President Obama, so I see no reason why we should facilitate them putting in some right-wing extremist.”
Whether or not Trump moved up the Supreme Court nomination to divert attention from his unconstitutional executive orders restricting immigration, which have caused unprecedented protests across America and near-universal condemnation from abroad, is an open question. His top aides—namely Steve Bannon—openly embrace “shock events” as propaganda tactics to keep their opponents and critics scrambling and reactive.
“We’re moving things along fast. We actually had a very good day yesterday in terms of homeland security,” Trump told the White House press pool Monday. Earlier in the morning Trump (or a staffer under his name) tweeted the SCOTUS nomination was coming Tuesday, with Trump telling the pool his pick will be “a person who is extremely highly respected, and I think you will be very impressed with this person.”
The White House also issued a statement Monday accusing Senate Democrats of delaying Cabinet confirmations—another effort to shift the focus away from the immigration debacle. Under the Senate’s current rules, which Senate Majority Leader Mitch McConnell has threatened to throw out, the Supreme Court nominee is the only Trump appointee that Democrats have enough votes to block. That’s because the Senate filibuster rule is still in place for the high court, requiring 60 votes for approval.
There were reports that some Democratic senators are willing to hold hearings on Trump’s choice and then vote on the nominee. Yet it remains to be seen if what may be a growing division within the party, pitting progressive grassroots against more moderate senators, will become a sideshow and distraction serving Trump.
“The Dems in the Senate actually have to do something about this stuff,” tweeted Howard Dean, the former DNC chair, presidential candidate and Vermont governor, in response to what he perceived as tepid comments by senators surrounding the spontaneous immigration protests. “You are being left behind by your base.”
Ironically, Trump’s efforts to change the national political conversation by focusing on the high-stakes Supreme Court underscores the importance of the judiciary as perhaps the only co-equal branch of federal government that can say no to a White House that appears bent on consolidating power. As Anthony Romero, the ACLU executive director, said on the steps of a Brooklyn federal courthouse Saturday night after the first of several federal courts ruled that Trump’s immigration orders were unconstitutional, “The courts can work. They are a bulwark in our democracy.”
That optimistic contention will soon be put to the test. Virtually all of the potential Supreme Court nominees named by Trump during the campaign, as well as the list of finalists leaked to right-wing media and insider Washington publications, are a who’s who of right-wingers whose backgrounds suggest they would shred reproductive rights as well as environmental laws intended to slow climate change. By late Monday, the names of three federal judges were circulating as the top prospects.
The first was Neil Gorsuch from the 10th Circuit Court of Appeals in Denver. Gorsuch, 49, is known for siding with religious liberty advocates in cases challenging Obamacare’s birth control mandates. He’s also written books rejecting right-to-die prerogatives for people living with terminal disease. While he has not explicitly issued an abortion ruling, his anti-choice views are fairly well established. Gorsuch reportedly likes to say he’s an adherent of Scalia’s so-called originalist constitutional doctrine, meaning he does not think anything beyond the founders' intentions should become part of federal judicial decisions. Needless to say, Scalia was one of the most activist right-wing justices while denying that was the case. He wrote the Heller decision, for example, adding the right to own a handgun at home to the Second Amendment. He ruled that the 2000 Florida presidential recount had to be halted, which awarded the presidency to George W. Bush, because different counties were using different ballot counting procedures and that violated Bush’s right to equal treatment under law—though the entire electoral system is manned by citizen poll workers who don’t behave like robots.
The second name on Trump’s short list, according to Fox News, is Thomas Hardiman of the Third Circuit, who sits in Pittsburgh. Hardiman, 51, was not initially considered a leading candidate, but he sits on the same federal appeals court as Trump's sister and some of his prior rulings on immigration have refused to grant legal rights to anyone who is not a U.S. citizen. That could help the White House should its latest executive orders wind up before the Supreme Court. As legal blogger Steve Vladeck wrote at Just Security, Hardiman joined an appeals court ruling holding that “non-citizens physically but not lawfully present on U.S. soil are not protected by the Constitution’s Suspension Clause—meaning that they have no constitutional right to judicial review, even if their detention and/or removal from the country is clearly unlawful.”
The third leading prospect is William Pryor Jr., 54, who sits on the 11th Circuit Court of Appeals in Atlanta. He is especially polarizing for Democrats because he called the pro-reproductive rights Roe v. Wade ruling the "worst abomination of constitutional law,” even though some of his other rulings have been said to upset conservatives. According to the National Law Journal, Gorsuch, Hardiman and Pryor all “appear to qualify as millionaires, according to their most recent financial disclosure forms.”
Of course, Trump may select someone else entirely. According to Politico, he has also floated these judges:
- Diane Sykes, 59, Seventh Circuit Court of Appeals. This ex-justice of the Wisconsin Supreme Court “issued a decision compelling a state-run university to recognize a Christian legal group as an official school organization even though the group banned leaders engaged in homosexuality or ‘fornication.’” She “also voted to reinstate Wisconsin’s voter ID law just eight weeks before the 2014 general election."
- Joan Larsen, 48, Michigan Supreme Court. She was a law professor at the University of Michigan before being appointed to that state’s top court in September 2015. From 2002 to 2003, she took leave from the university to work in the Justice Department’s Office of Legal Counsel, while that office was producing opinions for the White House justifying torture in the war on terror.
- Raymond Gruender, 53, Eighth Circuit Court of Appeals. His anti-abortion rulings include an opinion that the state has the right to force doctors to tell women seeking abortions that they would be at risk of committing suicide if they underwent the procedure.
After Trump names his nominee, media attention will quickly shift to that jurist’s record—what opinions they have and have not issued on every conceivable topic—and to the politics in the Senate, where the open question is how united the Democrats will be and what McConnell will do in response to throttle the process.
But Tuesday’s announcement is not likely to be Trump’s only Supreme Court pick. The court’s oldest members are Anthony Kennedy, 80; Ruth Bader Ginsburg, 83; and Stephen G. Breyer, 78. If Trump successfully seats a replacement for Scalia and even one of these elderly justices, the court’s majority will be transformed into a right-wing behemoth for decades to come.