Why conservatives are optimistic about Trump's Supreme Court nominee options

President Trump said he would announce his pick for the Supreme Court on Tuesday night.

Pablo Martinez Monsivais/AP/File
The Supreme Court building in Washington in June 2014.

President Trump plans to announce his nomination for the Supreme Court, a justice his administration has said will be a “strict constructionist,” on Tuesday night, he said on Twitter.

The three names said to be on the shortlist are those of federal appeals court judges all appointed under former President George W. Bush: Neil Gorsuch, Thomas Hardiman, and William Pryor. Yet a fourth name has emerged, a White House official told the Associated Press on Sunday. Diane Sykes of the US Court of Appeals for the Seventh Circuit based in Illinois was an early favorite of Mr. Trump’s.

The prospect of Trump filling the vacancy left by the death of constructionist Justice Antonin Scalia has some Republicans excited. Republican presidents of the 80s, 90s, and 2000s hoped to turn the court into a conservative bulwark. But the justices those presidents put on the court failed to deliver, siding with liberals on abortion, gay rights, and some cases involving the death penalty and military detainees. Now, observers say the Trump administration has narrowed its pick down to four choices with transparent records.

"It's not surprising that when we get to down what looks like the real shortlist, it's appeals court judges. That's about being absolutely sure we've got the record straight," Christine Nemacheck, a government professor at the College of William and Mary in Williamsburg, Virginia, and the author of a book about the Supreme Court selection process, told the Associated Press.

While Trump didn’t give any hint in his tweet of who he has chosen, the four names on this shortlist are the product of media accounts and confirmation from his staff. Mr. Gorsuch is a federal appeals judge on the 10th US Circuit Court of Appeals in Denver. A graduate of Columbia University and Harvard Law School, the Coloradan is known as a colloquial and clear writer. He has written in favor of courts’ second-guessing government regulations, in defense of religious freedom, and skeptically about law enforcement. He also sided with two groups that mounted religious objections to the Obama administration’s requirement employers provide health insurance that includes contraception for women.

Mr. Hardiman works in Pittsburgh as a judge on the Philadelphia-based 3rd US Circuit Court of Appeals. A graduate of the University of Notre Dame and Georgetown University's law school, he has sided with jails seeking to strip inmates arrested for even minor offenses, and has backed the collection of genetic evidence from people at the time of their arrest. He has also supported gun rights, dissenting in a 2013 case that upheld a New Jersey law that created stricter requirements to carry a handgun in public.

Mr. Pryor works in Birmingham as a judge on the Atlanta-based 11th US Circuit Court of Appeals. Known as a staunch conservative, Pryor attributes his political beliefs to his Catholic upbringing. Pryor – who once called the Roe v. Wade decision legalizing abortion the “worst abomination in the history of constitutional law” – said the 1973 case influenced his decision to become a Republican and a lawyer.

Vice President Mike Pence told Republican lawmakers last week that all the names on this shortlist represent Trump’s promise to nominate a “strict constructionist,” a judge that interprets the US Constitution using a literal and narrow definition of language in the document, and which doesn’t account for changes in American society since it was written in the 18th century.

"I can already tip you off: President Trump's going to keep his promise to the American people and he's going to nominate a strict constructionist to the Supreme Court," said Mr. Pence.

But Democrats are still fuming over Republican’s refusal last year to consider former President Obama’s nomination to fill the Scalia vacancy. Many Republicans refused to even meet with appeals court Judge Merrick Garland. Last week, Senate Democratic leader Chuck Schumer of New York told Trump that Democrats would fight any nominee they consider to be outside the mainstream.

Any Trump nominee would need 60 Senate votes to be confirmed. There are 52 Senate Republicans, and Democrats could use a filibuster. But Trump told Fox News’s Sean Hannity last week that he would support the so-called nuclear option, which would overturn both Senate rules requiring 60 votes and any filibuster. Under the rule change, Republicans would need only a simple majority. 

Many conservatives have said they hope the pick doesn’t turn out to be a “Souter,” a reference to Justice David Souter appointed under George H.W. Bush. The former state judge in New Hampshire was expected to be a “home run” for conservatives, but turned out to be a generally liberal vote on the court. Some say so too were Anthony Kennedy, a Reagan appointee, and Chief Justice John Roberts, who has upset some conservatives. 

This report includes material from the Associated Press and Reuters.

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