Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, January 26, 2017

President Trump will make his Supreme Court nomination next week

Nearly one year after the death of Justice Scalia, the U.S. Supreme Court is finally closer to returning to a full panel of nine justices. While President Obama did nominate Judge Merrick Garland to fill the spot, election year politics doomed his nomination from proceeding as usual. 

Now President Trump reports there are three judges he is considering

Neil Gorsuch, Colorado, 10th Circuit. At 49 the youngest of the group, Gorsuch is the most natural replacement for the late Justice Antonin Scalia. He is a strict adherent of originalism, Scalia’s belief that the Constitution should be interpreted based on the intent of the Founders. He also has much of Scalia's flair as a writer.

Gorsuch has the type of academic credentials common to high court justices: Columbia, Harvard Law, even Oxford. He clerked for Justices Byron White and Anthony Kennedy, then practiced law in Washington and did a stint at the Justice Department.

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William Pryor, Alabama, 11th Circuit. He’s been the conservatives’ justice-in-waiting for years, and at 54, the former Alabama attorney general comes straight out of central casting. Likely in his corner: U.S. attorney general-designate Jeff Sessions, who preceded Pryor as Alabama’s top law enforcement official.

But Pryor is controversial: He once criticized the Supreme Court’s 1973 decision in Roe v. Wade, which legalized abortion, as “the worst abomination of constitutional law in our history.” And he even has taken flak from conservatives concerned about a ruling he joined in favor of transgender rights.

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Thomas Hardiman, Pennsylvania, 3rd Circuit. A dark horse among the finalists, Hardiman, 51, isn’t unfamiliar to Trump. He sits on the same U.S. Court of Appeals for the 3rd Circuit as the president’s sister, Maryanne Trump Barry.

Hardiman’s career as a judge is marked by law and order. He has maintained a solidly conservative record on issues involving guns, searches, police officers and prison guards – more so than Scalia, who often sided with criminal defendants against overzealous prosecutors. In that sense, Hardiman is much like Justice Samuel Alito, who came from the same appeals court.

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The process for confirmation requires only a simple majority of Senators' votes, however, 60 votes would be needed to cease debate and invoke cloture. Currently Republicans have only 52 senators, so they would need the help of Democrats to allow the vote to go forward if a filibuster was invoked. It is a safe bet to say that confirmation of any nominee is going to be an arduous process since the Democrats have pledged to fight Trump every step of the way.

In response, President Trump has threatened to remove the filibuster rule (using the nuclear option), a shredding started by Senator Harry Reid who led Democrats to remove the 60 vote rule for lower court nominees. He used Republican obstructionism as his justification for weakening the rule. The Republicans may now find Reid's argument persuasive if Democrats engage in the same tactics.

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I knew Judge Gorsuch at DOJ. Nice guy. I hear the big announcement is on Thursday. I had forgotten that we are almost a year since Justice Scalia's death.

Posted by: Tessa | Jan 27, 2017 6:35:29 AM

I agree, hard to believe it's been almost a year.

Posted by: Jennifer North | Jan 27, 2017 6:00:49 PM

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