Judiciary: Rocky Path Expected for High Court Nominee

CQ MAGAZINE – COVER STORY

Donald Trump inherits a vacancy on the Supreme Court to fill, thanks to a highly controversial decision by Senate Republicans last year to block President Barack Obama’s nominee.

Trump’s pick to fill the seat of the late Justice Antonin Scalia likely will face a bruising Senate confirmation process, particularly because the ideological balance of the Supreme Court is at stake. Trump also will inherit about 100 vacancies to fill on the nation’s federal district and appeals courts.

WHERE IT STANDS: Trump pledged to make a Supreme Court pick from a list of 21 judges he released during the campaign that was developed with help from the conservative Federalist Society and Heritage Foundation. These names have generally met with approval from conservative lawmakers. Trump said in December that he had narrowed that list to three or four, but he has not yet announced a nominee.

Senate Judiciary Chairman Charles E. Grassley of Iowa plans to swiftly hold hearings for whomever Trump names, which likely means they would take place early in 2017. Democrats are unlikely to forget the GOP’s historic stonewalling of Obama’s choice, Judge Merrick Garland, who was tapped in March 2016 and never got a hearing. Democrats are equally unlikely to help confirm a nominee they fear could undo court rulings on key issues such as abortion rights, since Trump has pledged to appoint jurists who would undo Roe v. Wade.

A group of 41 Democratic senators could filibuster a nominee, but Sen. Dianne Feinstein, the new ranking member of the committee, called that “unprecedented and disrespectful.” The California Democrat said “the committee will pay very close attention to proposed nominees” in the confirmation process.

OUTLOOK: Minority Leader Charles E. Schumer of New York and his fellow Democrats have some political calculations to make about how vigorously to oppose Trump’s nominee.

If they try to block the Supreme Court nomination with a filibuster, 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 it would take a simple majority instead of 60 votes to allow for a confirmation vote.

Democrats, however, eliminated the filibuster rules in 2013 for lower court picks. Some of Trump’s choices are sure to draw immense opposition from Democrats over their judicial approach, their job qualifications or their history of opinions on social issues such as abortion or civil rights. But for the first time in modern history, Democrats won’t have the Senate’s most powerful procedural tool to keep them off the bench.