After Neil Gorsuch was confirmed, most of America moved on to Russia, North Korea, the tax plan, and Rodrigo Duterte. But a small universe of Republican legal thinkers moved on, instead, to war-gaming the next Supreme Court vacancy.
It is widely believed that Justice Anthony Kennedy will step down in the near future. (One of the selling points for Gorsuch was that, as a former Kennedy clerk, his elevation would reassure the 80-year-old justice that Trump could be trusted to pick his successor.) If/when that comes to pass, President Trump will be faced with the decision to stick with the list of 21 potential justices he provided during the campaign, or go rogue. And the politics of this decision are complicated by the fact that this will be the first Supreme Court nomination begun without the possibility of a filibuster.
Opinions within Republican legal circles differ on what Trump should do. Over the weekend, Trump told the Washington Times that he intended to stick with the list. A Republican strategist friend emails in to explain why he thinks this is the smart play:
The List used to constrain Trump, now it constrains the Senate, and that’s why he should stick to it. The original goal of the List was to keep Trump from getting elected and then putting his sister or his real estate lawyer on the Court. By all accounts it performed admirably in getting #ReluctantTrump-ers on board and then actually constraining him once he took office. Now, however, the consensus opinion seems to be that his next pick should not be bound by the List and he can order off menu. This warms the hearts of DC insiders who see a chance for Brett Kavanaugh and Paul Clement. That’s fine. They’d be good picks. But I think this liberated outlook misunderstands the post-filibuster dynamic in the Senate. Now that it’s a 50-vote threshold for (probably) the Kennedy seat—which is to say, the Roe seat—I don’t think we can assume that the conference will vote in unison. Collins and Murkowski will take very hard looks at anyone who comes out of the White House and a good handicapper might very well put them in the no column for anyone with even a whiff of pro-life sentiment. That puts us at 50, and McCain has already indicated that in the post-filibuster world it’s up to reasonable men like him to keep extremists off the Court. A look at his past District Court picks and his main judicial advisor gives a hint of how he might approach “reasonableness,” all other things being equal. So would an off-menu pick like Kavanaugh or Clement be an extremist? Probably not. But that’s not really the point. The point is that the R’s have a 52-48 majority and it seems like at least 3 members of their conference are committed to “moderate” court picks. Three votes in a two-vote majority and you’ve got a Gang going. Add in Manchin and Heitkamp and it’s “bipartisan,” too. Once Trump is off the List and negotiating with DC insiders for someone like Kavanaugh or Clement what’s to stop the Gang of Three (or Gang of Five) from demanding a seat at the table? After all, they would have the power to scuttle any “extreme” pick at their say-so, and it’s not like Trump is deviating in an anti-swamp/base-service direction by leaving the List to consider DC judges. If Trump stays on the List he has a response to that. The field is not open to negotiation. He was elected to put these specific people on the Court. They have been vetted, in a sense, by the American people. Will that argument persuade Collins to go soft on the swing seat? Probably not. But if the List isn’t open to negotiation, the Gang can’t show up and use its leverage to sway the open negotiations. A Gang of Three effort to supplant the List would be closer to a hostile takeover on a core base issue than anything else, and that would put someone like McCain in a much more precarious position.
