Soon after his inauguration on Jan. 20, President-elect Trump will send to the Senate the name of his nominee to replace the late Justice Antonin Scalia on the Supreme Court.
The nominee will come from a list of 21 names that Trump announced during the campaign. With one exception (Sen. Mike Lee of Utah), all 21 are currently either federal judges or state supreme court judges in Midwestern, southern or Rocky Mountain states. All the names on Trump’s list have been vetted by the Heritage Foundation, the Federalist Society and other conservative advocacy groups.
Four of the current eight Supreme Court justices were nominated by Democratic presidents, and four were nominated by Republicans. However, the dynamics of the court are more complex than just a four-to-four partisan split.
Justices Clarence Thomas and Samuel Alito are the most conservative members. They are most inclined to adopt the “originalist” interpretation of the constitution emphasized by Scalia — interpreting the document in the light of the framers’ intent rather than in the light of historical development and contemporary understandings.
Chief Justice John Roberts and Justice Anthony Kennedy, while often voting the same as Thomas and Alito, are not rigid conservatives, and are much less likely to adopt an originalist interpretation. Sometimes these justices will vote with the court’s moderates and liberals, as did Roberts in his decisions upholding the Affordable Care Act, or Kennedy in his decisions on the constitutional right of same-sex couples to marry.
The strongest voices on the court for an expansive approach to constitutional interpretation are those of Justices Ruth Bader Ginsburg and Sonia Sotomayor. These justices are most likely to take issue with an originalist interpretation, and are most likely to argue that the Constitution should be read broadly to protect the rights of women, minorities and other historically disadvantaged groups.
The remaining two Democratic appointees, Justices Stephen Breyer and Elena Kagan, often agree on the results with Ginsburg and Sotomayor, but they are less likely to write sweeping opinions based on grand theory. By writing more modest, narrowly focused opinions, Breyer and Kagan are sometimes able to pick up the support of Roberts and/or Kennedy, leaving Alito and Thomas isolated in dissent.
Experts who have studied the records of Trump’s 21 possible justices note that, while all of them could be considered conservative, some are more likely to fall into the Roberts-Kennedy camp, while others are more similar to Thomas, Alito, and Scalia.
An example of a moderate conservative on Trump’s list is Judge Diane Sykes, who sits on the federal appeals court in Chicago. She is not known as an ideologue, and she has sometimes voted with moderate and liberal colleagues on her court, for example in a decision striking down Wisconsin’s voter ID law. Sykes is the sort of nominee who would likely be confirmed rather easily, obtaining the votes of all Republican senators and some Democrats as well.
An example of a more ideological conservative on Trump’s list is Judge William Pryor, of the federal appeals court in Atlanta. Pryor is a former attorney general of Alabama and a protégé of U.S. attorney general-designate Sen. Jeff Sessions. Pryor is a strong originalist, and a vocal critic of the Supreme Court’s current direction on topics such as abortion and constitutional rights for LGBT people.
If Trump were to nominate Pryor, or someone like him, nearly all Senate Democrats would vigorously oppose him. Could they pick up the votes of three Republicans and defeat the nomination? If not, would they filibuster the nomination? If so, would Majority Leader Mitch McConnell invoke the “nuclear option” and try to eliminate the filibuster on Supreme Court nominations, as it has been eliminated for nominations to the executive branch and the lower federal courts?
Eric L. Davis is professor emeritus of political science at Middlebury College.