How Many Pro-Life Supreme Court Justices Will Trump Appoint?



Republican senators are now suddenly vindicated for stalling the nominations process for Justice Scalia’s replacement. Liberal and conservative pundits alike are now acknowledging the wisdom and/or canniness of this move:

“Senate Republicans’ strategy of not even considering Garland, of letting the American people decide who gets to fill Scalia’s seat, worked,” said Ilya Shapiro, a lawyer with the Cato Institute, a libertarian group. “Not only that, but it didn’t at all hurt vulnerable senators running for re-election.”

Voters on both sides knew how momentous the 2016 Presidential election would be, if only in terms of the Supreme Court implications. Liberals came so very close to dominating the nation’s highest court for the foreseeable future.

“On the brink of having the first liberal-leaning Supreme Court in decades, the judicial left has now been banished to the wilderness for perhaps decades more,” said Barry Friedman, a law professor at New York University. “It is difficult seeing a path to anything other than a yet more conservative court for the imaginable future.”

The seminal achievement, so long prayed for, has already been promised by Candidate Trump: the overturning of Roe v. Wade. In the final presidential debate, Trump was asked by the moderator, Chris Wallace, whether he wanted to see the landmark court case overturned. Trump responded by stating the following:

“Well, I think that will happen,” Trump began, before adding, “Well if we put another two or perhaps three justices on, that's really what will happen, that will happen automatically in my opinion because I am putting pro-life justices on the Court.”


Trump further refined his statement on the overturning of Roe: “I will say this, it will go back to the states and the states will make a determination,” Trump added. This is true, de facto. The result of overturning Roe is negating the so-called right to an abortion as a fundamental or constitutional-protected right. If the U.S. Constitution is not held to speak on the issue, each state will have no federal threshold to start from and may then rule for itself, whether such a right exists.

Constitutional issues aside, Trump is on record stating he will nominate pro-life justices “two or perhaps three.”

Merrick_Garland.jpgIn a recent wide-ranging interview with Leslie Stahl on CBS' "60 Minutes", Trump said that his role of appointing a Supreme Court justice is “very important”. He then reiterated his promise to appoint pro-life justices: “I’m pro-life,” he said. “The judges will be pro-life.”

We know Merrick Garland is out. He hardly fits the bill. Frankly, in my opinion, the audacity of trying to replace Justice Antonin Scalia, a LION, with this bespectacled fellow is beyond insulting. Anyway ...


WHO’S ON TRUMP’S LIST? A PRIMER

Here’s the list with interesting biographical details: (For more on this check out: LawNewz by Dan Abrams)

  • Diane S. Sykes -- Bush appointee to the 7th Circuit; found a Chicago ban on firing ranges unconstitutional;
  • Bill Pryor -- Bush appointee to the 11th Circuit; called Roe v. Wade “the worst abomination in constitutional law in history”;
  • David Stras -- clerked for Justice Clarence Thomas; wrote for SCOTUSBLOG
  • Joan Larsen -- clerked for Justice Scalia;
  • Raymond Kethledge -- clerked for Justice Anthony Kennedy; founded his own law firm focusing on class-actions;
  • Don Willett -- Supreme Court of Texas; no friend of Trump on Twitter, uh-oh!
  • Thomas Lee -- clerked for Justice Clarence Thomas; professor at BYU;
  • Steven Colloton -- clerked for Chief Justice William Rehnquist; worked in the Office of Independent Counsel Kenneth Starr;
  • Allison Eid -- Colorado State Supreme Court; clerked for Justice Thomas;
  • Raymond Gruender -- judge on the Eighth Circuit Court of Appeals;
  • Thomas Hardiman -- serves on the Third Circuit Court of Appeals;
  • Keith Blackwell -- Georgia Supreme Court; former ADA in Cobb County, GA;
  • Charles Canady -- Florida Supreme Court; served four terms in the U.S. House of Representatives, where he was on the House Judiciary Committee; General Counsel to Florida Gov. Jeb Bush;
  • Neil Gorsuch -- Bush appointee with a D.Phil degree from Oxford;
  • Mike Lee -- Republican Senator from Utah; clerked for Justice Samuel Alito; told Politico in September that he is not interested in serving on the Supreme Court;
  • Edward Mansfield -- Iowa Supreme Court;
  • Federico Moreno -- federal judge, Southern District of Florida;
  • Margaret A. Ryan -- Bush appointee, judge for Court of Appeals for the Armed Forces (CAAF); Notre Dame Law School; active duty in the U.S Marines for 11 years; clerked for Justice Clarence Thomas;
  • Amul Thapar -- the first federal judge of South Asian Descent;  famously put an 84-year-old nun, an anti-nuclear activist, in prison for busting into a nuclear facility;
  • Timothy Tymkovich -- writing for the majority, he ruled that for-profit corporations like Hobby Lobby are exempt from a law based on religious convictions if a less restrictive method exists, Burrell v. Hobby Lobby Stores;
  • Robert Young -- Michigan Supreme Court; wrote an advisory opinion that a voter photo identification requirement was reasonably nondiscriminatory for the “legitimate goal of preserving the fairness of the elections”;
Can you guess who my favorite is? Yep, Judge Bill Pryor on the basis of his quote alone. I bolded the names of some other exciting potential nominees.


For your reference, here is a current ranking of the current Supreme Court by age:

  • Ginsberg (83)
  • Kennedy (80)
  • Breyer (78)
  • Thomas (68)
  • Alito (66)
  • Roberts (61)
  • Kagan (56)

So how many will it be? How many will Trump be able to nominate?

Two of the court’s liberals, Justices Ruth Bader Ginsburg and Stephen G. Breyer, are 83 and 78, respectively. Moderate conservative Justice Anthony M. Kennedy is 80. According to the Chicago Tribune, as long as these three stay, the court's rulings on sensitive social issues, i.e. protecting abortion rights, affirmative action and gay rights, are secure.

In addition to filling Justice Scalia's seat, recently vacated at his death, Trump could also replace the following:

Justice Ruth Bader Ginsberg -- 2nd Trump appointment?
As the oldest justice currently serving on the bench, Justice Ginsberg is widely viewed as the most likely to vacate her seat during Trump's (first) term in office, giving Trump a second appointment to the Court.

On October 3, Justice Ginsberg told NPR in an interview concerning her biography that her biographers were hoping to publish her biography near her retirement. Either they gave up or her retirement is near. However, Ginsberg also stated the following in her interview: "I will retire when it's time," Ginsburg stated. "And, when is it time? When I can't do the job full-steam."

In the last couple years, Justice Ginsberg has survived several bouts with cancer. She was diagnosed with colon cancer in 1999. Despite undergoing chemo- and radiation therapy, she did miss a day from the bench. Afterwards, she started working with a personal trainer, Bryant Johnson, who also trains Justice Elana Kagan. By her 80th birthday in 2013, Justice Ginsberg seemed fully restored to health and able to do 20 full push-ups.

Ginsberg survived another bout with cancer, this time pancreatic, in 2009. After undergoing surgery, she was again able to return to the bench without missing any time.

Most recently in 2014, Ginsburg, now 81, “experienced discomfort during routine exercise” and was taken to MedStar Washington Hospital Center, as the Supreme Court reported in a statement. Doctors placed a stent in her right coronary artery, a procedure known as a coronary catheterization.

Justice Anthony Kennedy -- 3rd Trump appointment?
As SCOTUS' second oldest justice at 80 years old, Justice Kennedy could provide Trump with a third appointment. Replacing Kennedy with a more conservative and pro-life justice would not be as dramatic a change as replacing Justice Ginsberg. Kennedy has long been the swing vote between the liberal and conservative wings of the Court. He is also one of the Court's Catholic justices. He served as an altar boy growing up in California. Nevertheless, his pivotal vote, while sometimes helpful in pro-life cases, also resulted in a liberal majority on the recent gay marriage ruling. He actually authored the majority opinion in Obergefell v. Hodges.

So, how is the good justice's health? Justice Kennedy had a coronary stent put in following a scare in 2006, in which doctors found no evidence of damage to the justice's heart. The stent has from time to time required visits to the hospital for routine procedures

Despite being in what appears to be great health, there are rumors of Justice Kennedy's possible retirement in 2017. In an Above the Law article, three reasons are provided as foundations for this rumor:

  1. Justice Kennedy is holding his next law clerk reunion in 2017, his 29th year on the Court — instead of 2018, his 30th year on the Court. Here is the letter the justice wrote to all his former law clerks.
  2. Kennedy typically teaches abroad in Salzburg during the summer, but did not in 2016, suggesting his schedule might be slowing down.
  3. Kennedy hired a clerk for the October 2017 Term that had originally been hired by Justice Scalia and then he concluded his hiring process without filling his remaining three clerk spots. Of course, several of the other justices have yet to fill their clerk lists. Nevertheless, it appears their hiring process is ongoing. 

Justice Stephen G. Breyer -- 4th Trump appointment?
As SCOTUS' third oldest justice at 78 years old, Justice Breyer could provide Trump with a third appointment. The replacement of Breyer with a more conservative judge would likely have a greater impact than replacing Kennedy. The Eagle Scout has consistently voted in favor of expanding the right to abortion.


Breyer was actually nominated to the bench by President Clinton while in a hospital bed, following a nasty bicycle crash with an automobile. He has long since healed from the resulting broken rib and punctured lung. It was this bicycle accident that led to Ginsberg being elevated to the Court ahead of Breyer.


As of 2015, Breyer has confirmed that he is not considering retirement. In fact, it seems he holds a lower standard of health will allow him to continue serving on the bench than Ginsberg's "full steam" requirement. He said he likes the late Justice Thurgood Marshall’s preference for having his tombstone say merely that ‘‘he tried.’’

Any Possible Surprises from the Younger Justices?

Justice Clarence Thomas (age 68) was reportedly rejected from serving in the military because of scoliosis, the curvature in his spine. After meeting him in person, I failed to notice that his back was all that curved. 

Meanwhile, Justice Alito (age 66) and Chief Justice John G. Roberts Jr. (age 61) are regularly seen attending public sporting events. Given their relative youth, retirement would be unheard of and an incident involving their health seems unlikely. 

Lastly, Justice Elena Kagan (age 56) has been described by The New York Times as a “reformed teenage smoker” who admits to enjoying “the occasional cigar,” though she fought the tobacco industry as part of the Clinton Justice Department.

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