Brett J Talley: Trump's decision will determine not only the future of the Court, but the future of his presidency
Talley: Democrats should realize it will restore court balance that existed before Justice Scalia died
Editor’s Note: Brett J. Talley is a lawyer, author, one-time writer for Mitt Romney’s 2012 presidential campaign and former speechwriter for Sen. Rob Portman. He is deputy solicitor general at the office of Alabama’s attorney general. The opinions expressed in this commentary are his.
Questions about the Supreme Court never rank very highly on American voters’ list of concerns. But if there was one issue this election that kept Republicans in Donald Trump’s corner even at his worst, it was the fear that handing Hillary Clinton the ability to fill Justice Antonin Scalia’s seat would cost conservatives the Supreme Court for a generation.
Saving the Supreme Court became for many the chief argument for Trump’s candidacy, and Trump produced not one but two lists of jurists he would consider should he win the election. These candidates were highly qualified and uniformly conservative. But the Never Trump wing of the Republican Party didn’t buy it. They argued that conservatives were naïve to think Trump would keep his word, speculating that any picks he would actually make would be as bad if not worse than Hillary Clinton’s.
Now that Trump has won, we are about to find out who was right. Trump’s decision will determine not only the future of the Court, but also the future of his presidency. Stumble here, and Trump could immediately lose the critical support he’ll need to advance his agenda.
Fortunately for him, the choice is not a particularly difficult one. Trump should nominate the first person he named the day Scalia died: Judge Bill Pryor of the 11th Circuit Court of Appeals, who is from my state of Alabama.
Pryor’s qualifications are beyond dispute. He is considered a brilliant legal scholar and is widely respected in conservative circles. None other than President Barack Obama — who likely agrees with Pryor on precisely nothing — nominated him to sit on the United States Sentencing Commission, a position to which he was unanimously confirmed by the Senate.
But unlike every other current member of the court, he didn’t graduate from an Ivy League law school, didn’t spend his entire career in New York or Washington and has real world experience, having served as attorney general of Alabama. And Pryor is a conservative; he is a pre-eminent defender of federalism, the separation of powers, and deciding cases based on the original meaning of the Constitution.
Which is not to say that Pryor’s nomination would be received with universal acclamation. Far from it. Pryor would be a controversial pick on the left. During the Bush administration, Democrats filibustered his nomination to the 11th Circuit, and he was only confirmed as part of a grand bargain that saved the filibuster for judicial nominations — until the Democrats eliminated it for all but Supreme Court slots during the Obama administration. There would be pressure on Sen. Chuck Schumer to lead a similar blockade now.
But Pryor would not change the makeup of the court that existed at Scalia’s death. At most, he would replace the reliably conservative vote of one Catholic justice with the reliably conservative vote of another Catholic justice. For instance, if same-sex marriage came to the court again, the vote count would be exactly the same.
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For that reason, Democrats would be wise to keep their powder dry. There may come a time when President Trump will have an opportunity to swing the court to the right for a generation. If the Democrats pull out all the stops to scuttle Pryor’s nomination, particularly after a presidential election premised on the notion that the next president should get his or her pick, their position would be greatly weakened should Justice Ruth Bader Ginsburg or Justice Anthony Kennedy retire. The Democrats can only go to the mattresses so many times, and given that this seat, uniquely, is premised on the results of the election, it would seriously damage any future case.
And if the Democrats do attempt to stop his nomination? Pryor is worth the fight. For too long, Republican presidents have gone for the “stealth” pick, nominations of jurists with little or no judicial track record, who may or may not adhere to a conservative judicial philosophy. Meanwhile, Democratic presidents have nominated men and women who are reliable liberals.
To put it in perspective, former Justice David Souter was appointed by George H.W. Bush, but quickly established himself as a member of the liberal bloc of the court. It is almost unimaginable that one of the four liberal justices would even cast a conservative vote on a controversial issue, let alone make a permanent move to the right.
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Replacing Scalia is a big test for Trump, but it also represents an opportunity. Nominating Pryor would buy him enormous political capital and flexibility to pursue an agenda that promises to stray from what conservatives might traditionally support. After all, a president’s policy objectives matter for four years — eight if they’re lucky.
A Supreme Court seat? Now that lasts a lifetime.