President Trump has apparently whittled his Supreme Court nominee down to three. Thomas Hardiman, William Pryor, and Thomas Hardiman are each Federal appellate court judges who are well regarded in conservative circles. But what will be Trump’s Supreme Court strategy? Senate Minority Leader Charles Schumer has laid down the gauntlet to President Trump: “If the nominee is not bipartisan and mainstream, we will absolutely keep the seat open.” Further, “we are not going to make it easy for them to pick a Supreme Court justice” he said previously. “It’s hard for me to imagine” Democrats supporting any nomination submitted by President Trump. With the filibuster rule in place, at least for now, how will President Trump elect to play this nomination game?
A Suggestion for Trump’s Supreme Court Strategy
The President essentially has two strategic choices. First, he can nominate the candidate he thinks has the best opportunity to get through the Democrats. But if that fails, he runs the risk that Democrats will block all of his choices. This would leave the Republicans with the unsavory option of eliminating the Supreme Court filibuster. We suggest this outcome could do lasting damage to the country. It would leave the Court more politicized than ever. And it would leave the minority at the mercy of the majority, something the founding founders worked hard to avoid.
Alternatively, President Trump could use a sacrificial-lamb approach. He could nominate the candidate he thinks is most offensive to the Democrats. In deference to the Democrats he could then withdraw that nominee before a vote. Thereafter, he would nominate the least offensive candidate.
This would permit the Democrats to claim victory. They will have “won” by preventing the selection of a nominee that their political base views as most offensive. Then, they could claim they were the bigger side, willing to work across the aisle with the President while claiming credit for saving the Supreme Court filibuster.
Playing Cards – The Likely Winner and Loser
So which of the three leading candidates is likely most offensive to the Democrats. We suggest it is Judge William Pryor, whom some on the left view as “a partisan and an extremist” and “the only one of Trump’s shortlisters who would merit a filibuster.” He labelled Roe v. Wade “the worst abomination in the history of constitutional law.” This is likely enough to block his way to the Court. Look here for a detailed analysis of Judge Pryor’s cases.
On the other side, we believe that Judge Neil Gorsuch is the nominee Democrats are most likely to accept. Look here for a comprehensive review of Judge Gorsuch’s cases and views. Judge Gorsuch is seen by voices on the left as a judge with “universal legal renown.” Further, “his writing is superb, incisive, witty and accessible . . . In his speeches and oral arguments he comes across as thoughtful and fair-minded.” In the view of this same voice his conservatism “is principled and consistent, making it a mixed bag for liberals.”
So what will be Trump’s Supreme Court strategy? This should be an interesting game for President Trump, the negotiator.
