Guided by influential conservatives, President-elect Donald Trump said Wednesday that he will nominate a Supreme Court justice within the first two weeks of taking office on Jan. 20, but his candidate could still easily miss what remains of the high court’s current term.
The term that began last October wraps up final oral arguments in April; last year, the final case was heard April 27. It took an average of 78 days between nomination and confirmation for the last three successful Supreme Court nominees, a timeline that if followed again could theoretically get Trump’s pick onto the court in time for the final few cases.
Some Senate Democrats, though, are still chafing at Republicans’ refusal to hold a hearing all year for Judge Merrick Garland, nominated by President Barack Obama last March to replace the late Justice Antonin Scalia, and some parliamentary slow-walking is possible in addition to the standard vetting.
“I assume the Senate will at least go through due diligence, usually two or three months,” said Doug Laycock, a law professor at the University of Virginia, adding that it might be likely that Trump’s pick will not be seated in time to participate this year.
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Foreshadowing the upcoming fight that could drag on for a while, Senate Minority Leader Charles Schumer of New York told reporters recently that “if they're out of the mainstream we'll oppose them tooth and nail.” The first obstacle will be the Senate Judiciary Committee, whose senior Democrat, California’s Sen. Dianne Feinstein, has already made clear she hasn’t forgotten Merrick Garland.
“After the unprecedented and disrespectful treatment of Merrick Garland ‑ a moderate judge who should have been quickly confirmed ‑ the committee will pay very close attention to proposed nominees to ensure the fundamental constitutional rights of Americans are protected,” Feinstein said.
At his news conference Wednesday, Trump said he will be “making the decision on who we will put up...probably within two weeks of the 20th.” He has already met with several candidates from his initial list of 21 possible nominees that he released during the presidential campaign.
His presumed shortlist is comprised of mostly federal appellate court judges including Judge William Pryor, Diane Sykes, Steven Colloton, Neil Gorsuch, Raymond Kethledge and Thomas Hardiman. Some, like the 54-year-old Pryor, would be sure to incite particularly strong Democratic resistance over some of his past statements, such as his claim that the Roe v. Wade decision upholding abortion rights was the “worst abomination in the history of constitutional law.”
Trump has said he would nominate a conservative who opposes abortion rights and supports gun rights and allowing businesses who oppose birth control on religious grounds to not offer coverage to their employees. Some Republicans have questioned his conservative credentials, but Trump said the Federalist Society’s Leo Leonard and Heritage Foundation President Jim DeMint, a former South Carolina senator, had been helping with potential names.
Scalia’s replacement would tip the balance of power of the nation's highest court, which now consists of four conservatives and four liberals. Conservative Justice Anthony Kennedy sometimes joins with the liberals on high-profile issues, including gay rights and the death penalty.