The Supreme Court ascended to a top issue in the 2016 election following the unexpected death of Justice Antonin Scalia in February.
Senate Republicans held off on holding any hearings for President Barack Obama’s nominee to fill the seat — Judge Merrick Garland — until after the election, claiming that they wanted to have voters decide who they wanted filling the seat.
It was considered far-fetched that Trump would end up selecting the replacement, as it looked as if he had little chance of winning the presidency. Some Senate Republicans, including Jeff Flake of Arizona and Lindsey Graham of South Carolina, openly discussed moving quickly on Garland after the election, even possibly before it, in Flake’s case, because Trump’s victory seemed so improbable.
But early on Wednesday morning, he shocked the world by securing the White House.
Now, Senate Republicans who held out look as if their gamble to hold the seat open paid off.
And Trump’s ability to fill not only Scalia’s vacant seat, but potentially the seats of four other justices who could soon leave the court, has the chance to set the court for decades.
“Ramifications for the Supreme Court are enormous,” Matt Mackowiak, a Republican strategist and founder of the Potomac Strategy Group, told Business Insider.
Adam Winkler, a constitutional-law professor at UCLA, agreed in an email to Business Insider, writing that Trump “will undoubtedly have a significant impact on the Supreme Court.”
But while the ramifications on the court of a Trump presidency are without any doubt, one professor doesn’t think it will lead to sudden reversals on major cases, such as Roe v. Wade and Obergefell v. Hodges involving abortion and gay marriage.
David Primo, associate professor of political science and business administration in the Simon Business School at the University of Rochester, told Business Insider that he doesn’t see either case being overturned, no matter how many appointments Trump is able to make. He also said, after reviewing Trump’s list of judges he said he’d select from to fill appointments, he isn’t picking anyone who appears to be out of line with mainstream judicial thought.
“Even though it’s not elected, the court looks toward the sense of the nation and legitimacy, and I don’t see a scenario in which Roe v. Wade is overturned,” he said. “It seems to me to be an example of a decision that is so firmly engrained, entrenched, you may see tinkering around the edges, but the fundamentals of that decision seem unlikely to be in danger.”
But “politics is about surprises, so we don’t know until we get these members on the court,” he continued. ‘This is going to be an opportunity for Trump to shape the court that presidents don’t always get.”
Primo added that “sometimes,” appointments don’t act as president think they will on cases. Such examples included former Justice John Paul Stevens and current Justice Anthony Kennedy, who was considered the swing vote on the court prior to Scalia’s death.
Focusing on the gay marriage decision, Primo said he doesn’t see a shift in the court resulting in “people losing rights that previous decisions have given them,” although it would be unlikely that the court would be progressive on issues regarding transgender rights.
“The court is not just going to go on a spree of reversing decisions,” he said. “You have to keep in mind this is already a center-right court. So, it’s just unlikely that we’ll see sort of a major retrenchment. We might see further movement on campaign finance and more deregulation of the campaign finance system. A stronger reading of the second amendment. Those are the kind of changes we’re likely to see.”
“I think John Roberts as chief justice is very sensitive to how the court is perceived,” he continued. “So we will see this a lot more gradually then either side either would like or not like. I think we’re just going to see slow movement.”
Another aspect of Trump’s appointments is how much Senate Democrats will be able to oppose them. Should they filibuster an appointment, Republicans would need more than a handful of Democrats to cross over for a confirmation.
“Will Mitch McConnell let that happen?” Primo said. “Will he say “we really just need a majority vote?'”
After being vocally opposed to the Senate Republicans stance on Garland’s confirmation, it might look hypocritical to do the same with Trump’s nominees. And incoming Senate Minority Leader Chuck Schumer told Bloomberg in an interview prior to the election that he thinks “the party that’s seen as obstructionist is going to pay a price in 2018.”
Democrats will be defending 25 seats in that midterm, compared to just eight for the GOP.
“But they could also say ‘this is a special situation, so we need to act accordingly,'” Primo said.
When it comes to Garland, who has been awaiting confirmation since March, his chances of joining the court are essentially dead.
“Obviously, Judge Garland’s nomination is now a non-starter,” Carter Phillips, a Washington, DC, lawyer who has argued before the Supreme Court more than any other lawyer in private practice, said in an email to Business Insider.
Primo said Garland knew what he was getting into before accepting the nomination, so it shouldn’t come as a surprise.
“It wasn’t like he was hoodwinked into accepting the nomination for Supreme Court justice,” he said.
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