THERE are two ways to think about the future of the Supreme Court in the wake of last night’s stunning upset in the presidential race: taking Donald Trump at his word when he says he will load the bench with conservatives, or, in view of his penchant for changing his mind, taking these promises with a shaker full of salt. Neither offers much solace to liberals.
Mr Trump has pledged to appoint highly conservative justices who will uphold gun rights, walk back the 18-month-old decision allowing gays and lesbians to wed and “automatically” overturn Roe v Wade, the 1971 ruling recognising a right to abortion choice. On the campaign trail, Mr Trump provided more information about his intentions with regard to the nation’s highest court than any presidential candidate has ever divulged: not one list of potential nominees but two, totalling 21 souls he says merit a shot in one of the Supreme Court’s nine seats.
That is 21 more names than previous applicants for the White House—including Hillary Clinton—have made public. Mr Trump released his first list of 11 names in May to shore up support for his budding nomination and to reassure conservatives that he could take just as hard a line on replacing Antonin Scalia, the arch-conservative justice who died in February, as his nearest rival, Ted Cruz. Publicising the roster, which was curated with the help of the Federalist Society and the Heritage Foundation, two solidly conservative think tanks, was a highly unorthodox move, and it’s likely Mr Trump knew very little about any of the potential nominees. But the stunt had its intended effect: the conservative base coalesced around Mr Trump and the real-estate magnate took the mantle of the Republican party.
The original Trump Eleven were all white judges, six sitting on federal circuit courts and five on state supreme courts. In line with what would become a promise to “drain the swamp” in the final weeks of his campaign, none hailed from inside the Washington beltway. That is a remarkable slight to the DC Court of Appeals, an institution where many presidents have fished for nominees. Of the eight justices currently on the Supreme Court, three once served on the DC court: the liberal Ruth Bader Ginsburg and conservatives Clarence Thomas and John Roberts, the chief. Barack Obama’s pick to replace Mr Scalia, Merrick Garland, is the DC circuit court’s chief judge.
Late in September, Mr Trump added ten more potential picks to his Supreme Court wish list. This list was more diverse. It included more women and three people of colour, including Amul Thapar, a Detroit-born judge of South Asian descent; Federico Moreno, a Florida judge who hails from Venezuela; and Robert Young, the black chief of Michigan’s supreme court. It also featured Mike Lee, a senator from Utah who refused to endorse Mr Trump and who called on him to quit the race following revelations about his treatment of women in October. Mr Lee has said he is happy serving in the Senate and is not interested in taking a seat on the Supreme Court.
Nobody knows who Mr Trump will actually tap for Mr Scalia’s empty seat. Mr Trump himself might have little clue. In the course of his business career, the president-elect has shown a remarkable ability to dodge and parry and reverse himself on everything from the war in Iraq to immigration policy to Mr Obama’s birthplace. Notably, Mr Trump never said he would choose one of the 21 people on his lists: he said the names should be viewed as “a guide” he would consult when sitting down to make his selection. They are “representative of the kind of constitutional principles I value”, he said. Time will tell whether those principles make their way into an actual Trump nominee.
But with Republicans in control of both houses of Congress and the White House, there is only one barrier to Mr Trump seating a justice of his choice: the Senate filibuster, a maneouver that permits the minority party to prolong debate and block votes as long as the majority is weaker than 60 votes. Senate leaders told The Economist over the summer that this last line of defence will be erased no matter which party takes the chamber in the November election. With their successful nine-month stonewall of Mr Garland now looking like a brilliant move to preserve a half-century-long conservative tilt on the Supreme Court, Republicans will have no reason to bow to a Senate rule that hamstrings their new president. Expect the filibuster to dissolve and Mr Trump to have his way with the empty chair—one way or another.
Meanwhile, last night’s vote may have changed retirement plans for Ruth Bader Ginsburg, 83 and Stephen Breyer, 78, the elder liberals on a court that is destined to swing to the right. If they hang up their robes over the next four years, the Supreme Court may be unrecognisable a generation down the road.
Source: The Economist