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Now It’s Trump Who Can Recast the Supreme Court

Election results end hopes for Obama’s long-languishing pick Merrick Garland

President-elect Donald Trump's term could be defined by his Supreme Court nominees. (Bill Clark/CQ Roll Call file photo)
President-elect Donald Trump's term could be defined by his Supreme Court nominees. (Bill Clark/CQ Roll Call file photo)

Senate Republicans held a Supreme Court seat vacant for the next president. Now that it’s President-elect Donald Trump and a Republican majority in the Senate, what happens next?

The election results end the hopes for President Barack Obama’s long-languishing pick for the Supreme Court, Judge Merrick Garland, since Republicans still control the Senate’s confirmation process. Donald Trump released a list of 21 potential Supreme Court nominees who were generally met with approval by conservative lawmakers, and Majority Leader Mitch McConnell of Kentucky will continue to hold the high court seat vacant for a Trump pick.

At stake is the ideological balance of the Supreme Court for decades.

A Trump win eliminates the potential for the first liberal majority since 1970. In addition to the current vacancy, three justices are older than 78 and could leave the court during the Trump administration — meaning Trump would be able to recast the Supreme Court for a generation with his choices.

Trump said repeatedly in stump speeches that preventing liberal justices from being appointed to the court was a reason conservatives should vote for him, particularly on gun rights.

“They’ll respect the Second Amendment and what it stands for, what it represents,” Trump said during a debate.

That sets up a major confirmation fight for more than just Trump’s choice to fill the seat of the late Antonin Scalia, the reliably conservative justice who died Feb. 13. That pick would likely come early in 2017. Democrats are unlikely to forget the GOP’s historic stonewalling of the Garland nomination for what would be nearly 300 days — and are equally unlikely to help confirm a nominee they fear could undo court rulings on key issues such as abortion rights.

But incoming Minority Leader Charles E. Schumer of New York and his fellow Democrats have some political calculations to make if they face more than one vacancy during the 115th Congress.  If they filibuster Trump’s Supreme Court pick, McConnell and Republicans could use the so-called nuclear option to change Senate rules and eliminate the filibuster for the high court. That would mean a simple majority instead of 60 votes to allow for a confirmation vote. Democrats eliminated the filibuster rules in 2013 for lower court picks.

Trump said during the debates that his appointees would be “pro-life,” pro-gun rights and “interpret the Constitution the way the founders wanted it interpreted” — a message the Republican has stuck to on the campaign trail. It’s also a judicial quality conservatives have championed for decades.

“I don’t think we should have justices appointed that decide what they want to hear,” Trump said.

Trump put out a list of 11 potential Supreme Court judges in June, which McConnell said were “right-of-center, well-qualified judges.” The list included conventional choices such as Thomas Lee, a Utah Supreme Court justice and the brother of Utah Republican Sen. Mike Lee.

“I think that issue alone should comfort people in voting for Donald Trump for president,” McConnell said in an interview with NPR at the time.

Trump in September released a list of 10 additional potential picks that helped garner the support of Sen. Ted Cruz, R-Tex., a former challenger for the Republican presidential nomination. The second list included Mike Lee and Florida Supreme Court Justice Charles Canady, a Republican member of the House from 1993 to 2001 who helped manage impeachment proceedings against President Bill Clinton.

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