Since the death of the conservative Justice Antonin Scalia in February, the U.S. Supreme Court has been operating with just eight sitting members. President Barack Obama nominated Merrick Garland as the likely successor but Congress decided to wait until a new administration would come to the White House.
Experts believe that Garland’s nomination remains valid until the new administration withdraws it or Congress adjourns it. However, it is highly unlikely for the Obama’s candidate to make it to the bench now that Trump has won. So, experts agree that this particular nomination would not go anywhere.
What’s more, President-elect Donald Trump has already disclosed two lists with potential candidates. Most of the judges on those lists are conservatives. Plus, Utah Senator Mike Lee might also win the nomination under the Trump administration.
Analysts believe that Joan Larsen, a Michigan Supreme Court justice who knew Scalia, could receive nomination. The nation’s highest court hasn’t had a former state-court since 2009 when Justice David Souter retired.
Two other potential nominees may be Margaret Ryan who has been Justice Clarence Thomas’s clerk. Justice Thomas is considered the most conservative member of SCOTUS. Plus, he is a staunch supporter of the 2nd and 10th Amendments.
However, other judges that are not on the lists may become Supreme Court justices. For instance, Solicitor General Paul Clement and the conservative federal judge Brett Kavanaugh make two interesting possibilities, experts think.
Democrats Could Block Trump’s Nominations
Analysts noted that when the new U.S. President nominates a replacement for late Scalia, GOP would already control the Senate. So, there is a chance that Democrats could block the nomination. Even in a GOP-controlled senate, Republicans will still need a 60-vote for the confirmation.
But if Democrats don’t intervene, new justices can assume office with fewer than 60 votes. For instance, Republicans confirmed Justice Clarence Thomas on a 52 to 48 vote and so they did with Justice Samuel Alito (58 to 42).
Nevertheless, in recent years the risk of a filibuster has skyrocketed. So, a new justice will likely need 60 votes. In 2013, the Democratic party changed filibuster rules just for lower court nominations, which now require just 51 votes.
But there’s a big chance those new rules will apply soon to Supreme Court nominations as well. Sen. Lindsey Graham advocated for it, even though Senate Majority Leader Mitch McConnell has his reservations.
An Aging Court
Moreover, under a Trump administration, several justices might retire as the court is visibly aging. For instance, liberal Justice Ruth Bader Ginsburg is 83 years old, while Justice Anthony Kennedy has just entered his 80s. In 2018, Justice Stephen Breyer will be eighty as well.
But experts claim the chances for these three to voluntarily step down are very slim. Ginsburg and Breyer wouldn’t want their seats to be given to a conservative, while Kennedy would rather keep his swing vote. However, a health issue might convince them to leave the bench sooner or later.
And even if Trump manages to build a predominantly conservative Supreme Court, the chances to undo the pro-abortion ruling Roe v. Wade and other landmark decisions Democrats have pushed so hard for are minimal. But the odds rise exponentially if Trump is able to nominate at least 2 conservative judges more.
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