A Supreme Court Pick Is Promised. A Political Brawl Is Certain. - New York Times
“We are prepared to oppose every name on Trump’s list,” Nan Aron, the president of the Alliance for Justice, one of the Democratic-leaning groups that has been planning for the court battle since Mr. Trump’s election. “The progressive, civil rights community will be united in opposition to either of those prospects or anyone else on the list.”
A key component of their strategy will be a multimillon-dollar campaign aimed at ensuring that conservative Democratic senators in states like North Dakota and West Virginia do not vote for Mr. Trump’s nominee or side with Republicans if they decide to change Senate rules to prevent Democrats from using a filibuster to prevent a vote. Without a rules change, Republicans, who have 52 members in the Senate, will need 60 votes to break a Democratic filibuster.
“This is a Supreme Court seat that was stolen from the previous president,” said Brad Woodhouse, a Democratic operative and veteran of past Supreme Court battles. To Republicans, he said: “We are not going to roll over and allow you to reap the rewards of that theft.”
But Mr. Trump and members of his party in Congress are determined to push through his choice for the court and restore the 5-to-4 advantage conservatives on the court enjoyed on many issues when Justice Scalia was alive. The court is currently split ideologically, resulting in occasional 4-to-4 deadlocks.
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After a meeting with Mr. Trump at the White House on Tuesday afternoon, Senator Chuck Grassley of Iowa, the chairman of the Judiciary Committee, praised Mr. Trump’s list of “widely respected and mainstream judges” and promised to move forward with the nomination quickly.
Jay Sekulow, the chief counsel for the American Center for Law and Justice, said that fierce Democratic opposition to any nominee could prompt Republicans, who control the Senate, to change the rules to require a simple majority vote to confirm a court justice. Democrats did that for lower-court judges when they were in control, and Republicans could return the favor.
But Mr. Sekulow predicted that Mr. Trump’s nominee would be confirmed in the end, no matter what.
“The conservative groups will mobilize, are already mobilized,” he said. “This is Justice Scalia’s seat. Conservatives cannot afford for that seat to be lost.”
It is possible that Mr. Trump will pick another nominee from his list of 21 possibilities, besides Judges Pryor, Gorsuch or Hardiman — or someone else entirely. Among the judges who have also received serious consideration are Diane S. Sykes, 59, of the federal appeals court in Chicago. But Judge Sykes’s chances seem to be fading, perhaps because her age is on the high side by the standards of recent nominees. All of Mr. Trump’s candidates have conservative records that are certain to become the focus of intense scrutiny and debate.
Judge Hardiman, 51, has an appealing personal story to tell, based partly on a humble background that distinguishes him from most of the current justices. He was the first person in his family to attend college, at Notre Dame, and he drove a cab to pay for law school, at Georgetown.
In 2003, President George W. Bush appointed him to the Federal District Court in Pittsburgh. Only one member of the current Supreme Court, Justice Sonia Sotomayor, has such trial court experience. Mr. Bush elevated Judge Hardiman in 2007 to the United States Court of Appeals for the Third Circuit, where he served alongside Mr. Trump’s sister, Judge Maryanne Trump Barry.
But Judge Gorsuch and Judge Pryor appear to be the most likely choices, and both have conservative records that are certain to become the focus of intense scrutiny and debate.
Judge Pryor is a protégé of Senator Jeff Sessions, Mr. Trump’s nominee for attorney general. When Mr. Sessions was Alabama’s attorney general, Mr. Pryor served as his deputy, succeeding him when he was elected to the Senate.
Representing Alabama, Mr. Pryor in 2003 filed a supporting brief urging the Supreme Court to uphold a Texas law that made gay sex a crime. The position of the gay men challenging the law, Mr. Pryor wrote, “must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.”
“The states should not be required to accept, as a matter of constitutional doctrine, that homosexual activity is harmless and does not expose both the individual and the public to deleterious spiritual and physical consequences,” Mr. Pryor wrote in the brief.
At his 2003 confirmation hearing, he stood by an earlier statement that Roe v. Wade, the 1973 Supreme Court decision that established a constitutional right to abortion, was “the worst abomination of constitutional law in our history.”
“I believe that not only is the case unsupported by the text and structure of the Constitution, but it had led to a morally wrong result,” Mr. Pryor told the Senate Judiciary Committee. “It has led to the slaughter of millions of innocent unborn children.”
Judge Pryor, 54, also has many supporters among conservatives, who say that he is a distinguished judge who applies the law impartially.
“His record clearly indicates that he applies the law in an evenhanded fashion, putting his personal beliefs aside,” said John G. Malcolm of the Heritage Foundation. “He is a man of great integrity committed to fidelity, to the Constitution and the rule of law.”
Judge Gorsuch’s credentials, erudition and more muted stances could smooth his confirmation chances, at least as compared with Judge Pryor.
Appointed to the appeals court by President George W. Bush in 2006, Judge Gorsuch, 49, has a legal approach that mirrors that of Justice Scalia. He is an originalist, meaning he tries to interpret the Constitution consistently with the understanding of those who drafted and adopted it. And he is a textualist, focusing on the language of statutes rather than what lawmakers have had to say about them.
His best-known votes came in decisions concerning regulations under the Affordable Care Act requiring employers to provide free contraception coverage. He voted to accommodate religious objections to the regulations, a position largely upheld by the Supreme Court.
Judge Gorsuch has not written extensively on other major social issues like gun control and gay rights, but his record could still provide ammunition for Democrats; he has called for limiting the power of federal regulators and has criticized liberals for turning to the courts rather than legislatures to achieve their policy goals.
Judge John L. Kane, who was appointed to the Federal District Court in Denver by President Jimmy Carter, said Judge Gorsuch was admired by his fellow judges. “He writes opinions in a unique style that has more verve and vitality than any other judges I study on a regular basis,” Judge Kane said.
Correction: January 26, 2017
An article on Wednesday about the prospects for a political fight over President Trump’s Supreme Court nominee misidentified the location of a court on which Judge Thomas M. Hardiman, a potential nominee, had served. It is the Federal District Court in Pittsburgh, not Philadelphia. The article also misspelled the given name of President Trump’s sister who sits on the United States Court of Appeals for the Third Circuit. She is Judge Maryanne Trump Barry, not Marianne.
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