When Justice Scalia died on February 13, Senate majority leader Mitch McConnell vowed not to process anyone President Obama might pick for the vacancy, arguing that the next president should make the nomination instead. Senate Republicans stuck to that position, and so the vacancy is now Trump’s to fill.
During the campaign Trump put out a list of 21 prospects for the Court—judicial conservatives all. Trump said he’d choose from among them and others who are also conservatives in filling Scalia’s seat. Here is an early test of President Trump—whether he makes good on his promise to nominate a bona fide conservative to the Supreme Court. If he doesn’t, he’ll doubtless hear from conservatives who said he couldn’t be trusted to carry out this promise.
Trump will be making the nomination under optimal conditions. His party will control the Senate. And it is early in a presidency that the minority party is more likely to go along with a president’s choice for the Court than not. Thanks to the rule change made by Senate Democrats three years ago, the minority party can require a 60-vote majority to confirm a judge to a lower federal court. Democrats stopped short of requiring the supermajority for a Supreme Court confirmation but have said they would consider the option if given the chance. Senate Republicans, too, could change that rule so that not a supermajority but a simple majority is needed to approve a justice.
The Court now has eight justices. If Trump appoints a judicial conservative, the Court will have four conservatives (Chief Justice Roberts, Justice Thomas, Justice Alito, and the new Justice), four liberals, (Justice Breyer, Justice Ginsburg, Justice Sotomayor, and Justice Kagan) and a Justice, Kennedy, who swings between those two foursomes in certain high-profile cases (affirmative action and abortion, for example). If Clinton had been elected, she would have the opportunity to shift the balance of the court to the left by filling Scalia’s seat with a judicial liberal. Trump’s choice—if an authentic conservative—would shift the balance back to where it was before Scalia’s death.
If more vacancies occur during Trump’s presidency, and he fills them with conservatives, the balance of the court could shift to the right.
