According to recent reports, President Trump is poised to deliver on perhaps his single most important campaign promise. Millions of American voters put away whatever lingering concerns they might have had and decided they would vote for the Republican candidate based on his announcement that if elected, he would nominate a Supreme Court Justice in the mold of the late Justice Antonin Scalia to fill the Scalia seat. During the campaign, he went even further by releasing a list of prestigious conservative jurists from which he pledged to select his nominee and may do just that this week.
Mr. Trump is reported to be focusing on three sitting judges from that list: Neil Gorsuch, Thomas Hardiman, and William Pryor. Any of these judges would satisfy conservatives, but for a variety of reasons Mr. Trump would be well advised to name Mr. Gorsuch.
Here’s why. Mr. Trump needs to choose someone who can counteract Justice Elena Kagan’s apparent influence on Justice Anthony Kennedy and gently escort Justice Kennedy back to his conservative roots. Justice Kennedy, whose vote is key to the outcome in many close decisions. Justice Kagan seems to have worked magic on Justice Kennedy. Since her arrival, he has consistently moved in the liberal direction and rarely looks back. Justice Kennedy has sided with the court’s liberals more often each term than he did the previous term since Justice Kagan came to the Court. In fact, he even voted more liberally in the 2015 term than Justice Ruth Bader Ginsburg did in both the 1993 and 1994 terms. Mr. Gorsuch, who once clerked for Justice Kennedy, may be able to counteract Justice Kagan’s pull.
Mr. Gorsuch is conservative and well-qualified. He is a sitting circuit court of appeals judge from the Tenth Circuit, graduated from Harvard Law and has a doctorate from Oxford. He writes clear opinions with a prose that matches the precision of Justice Scalia. He is also an ardent believer in interpreting the text of the constitution and statutes and dislikes ambiguous concepts like balancing tests and legislative history. He is solidly conservative on the right to bear arms, religious liberty, commerce clause cases, and other issues.
Mr. Gorsuch has the potential to influence the court long-term. He’s collegial, an invaluable asset for any justice and at 49-years would be the youngest justice, and slightly younger than the average successful post-war Supreme Court nominee.
Mr. Pryor is also solidly conservative, but his nomination could trigger a furious battle with Senate Democrats. At times, such battles are worth it. This is not one of those times. Mr. Gorsuch too will face opposition, but may prove far easier to confirm. Mr. Pryor and other potentially great nominees will presumably remain on the president’s list and available for future vacancies.
Mr. Hardiman, like the other two “finalists” is well-qualified and has an appealing backstory, which entails driving a cab to pay for law school, but has not been as consistently conservative and this could allow Senate Democrats to drive a wedge between conservative and more moderate Senate Republicans during a confirmation fight.
This first appointment will determine the fate of the president’s ability to fill future Supreme Court vacancies. With the first victory, Mr. Trump will be able to go back to his list or add to it as he shapes a conservative court that defends and applies rather than rewrites the constitution.
Mr. Trump may have the opportunity to reshape the court in ways we haven’t seen since 1971, when President Nixon appointed his fourth Supreme Court justice. Each of Mr. Nixon’s appointees were more conservative than their predecessors. Mr. Trump may be able to come close to that. Indeed, if Mr. Trump gets the opportunity to fill a second vacancy on the Court, he could make Chief Justice Roberts the new median on the court, something that would make the conservative chief the most powerful justice in decades. But to succeed in this, he must appoint collegial, well-qualified justices who can persuade Justice Kennedy in the short run and who will remain conservative over time.
Mr. Gorsuch would be a wise first choice.
• Ryan Owens is a political science professor at the University of Wisconsin-Madison.
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