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01:24 - Source: CNN

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Trump has a decision to make on his Supreme Court nominee

Republicans worry about nominating someone like David Souter, who turned to the left while on the bench

CNN  — 

For the past 35 years, Republican presidents have favored Supreme Court nominees who were young, tested and politically connected.

President-elect Donald Trump is no traditional Republican, but he has demonstrated he would rely on the conservative establishment for high-court advice. His lists of potential nominees sprung from advisers within the Federalist Society and Heritage Foundation.

Who will Trump pick for the Supreme Court?

Some consultants cut their teeth in the 1980s Ronald Reagan administration, adept at selecting judges at all levels of the federal bench who were young and committed.

Yet conservatives have not been without internal rivalries over who was best for the high court at a particular moment, such as when Antonin Scalia beat out Robert Bork for the 1986 nomination and John Roberts prevailed over Michael Luttig in 2005. All were appeals court judges with Republican administration bona fides.

Sunday night on “60 Minutes,” Trump injected criteria related to the substantive views he would seek in a new justice, notably opposition to abortion rights.

“The judges will be pro-life,” he said, again expressing interest in reversing the 1973 Roe v. Wade landmark that made abortion legal nationwide.

Yet the President-elect said that he believed last year’s decision allowing gay marriage in all 50 states was “settled.”

“It’s law. It was settled in the Supreme Court. I mean it’s done,” Trump declared of the recent gay marriage ruling.

Trump has not said when he will make his selection, but there is bound to be jockeying among conservatives today over who should succeed Scalia, the right-wing intellectual and provocateur who died in February. That’s before whatever opposition might emerge among Democratic senators who saw Republicans fatally stall President Barack Obama’s choice of Merrick Garland, chief judge of the US Court of Appeals for the D.C. Circuit.

Not since 1969 has a president begun his tenure with a Supreme Court seat ready to be filled. Yet, even with a lifetime spot there for the taking, naming this new justice may not go as smoothly as when President Richard Nixon tapped Warren Burger, a law-and-order judge on the D.C. Circuit to succeed retiring Chief Justice Earl Warren. Warren announced his intention to retire in June 1968, expecting then-Democratic President Lyndon Johnson to choose his successor. But senators blocked Johnson’s attempt to elevate Associate Justice Abe Fortas.

Warren stepped down in June 1969 after Nixon appointed Burger. Fortas, ensnarled in a financial scandal, resigned that year, too. It took Nixon three attempts and about a year to fill that seat. After the Senate rejected federal judges Clement Haynsworth of South Carolina and G. Harrold Carswell of Florida, it confirmed Harry Blackmun, a U.S. appeals court judge in Minnesota who had been best man at Burger’s wedding.

Avoiding another Souter

On the current bench, the longest serving justice is Anthony Kennedy, whom Reagan appointed at age 51 in 1988. President George W. Bush, who would be Trump’s most recent GOP predecessor, named Roberts at age 50 and Samuel Alito at 55.

Ideology has been paramount for Republican administrations. And they’ve generally gotten what they wanted. An exception was the 1990 selection of David Souter, then 50, whom President George H.W. Bush’s chief of staff John Sununu declared a “home run” for conservatives.

Souter, who like Sununu was from New Hampshire, ended up with one of the most liberal records in recent decades. He retired in 2009, succeeded by President Obama’s choice of Sonia Sotomayor, the first Hispanic justice.

George H.W. Bush’s other appointee was Clarence Thomas, at age 43, in 1991. Thomas, and African-American lawyer who served in both the Reagan and Bush administration, succeed the first black justice, Thurgood Marshall.

Diversity does not appear a priority for Trump. His first 11 candidates offered during the campaign are all white jurists. His second list of 10 issued a few months later was more diverse.

Among those candidates who would be under more serious consideration, based on past GOP criteria of seeking those who’ve been tested, are US appeals court judges such as Steve Colloton of Iowa, William Pryor of Alabama, and Diane Sykes of Wisconsin.

Trump may have a second opportunity during his four-year term, given the ages of current justices. Ruth Bader Ginsburg is 83, Kennedy, 80, and Stephen Breyer, 78. So his advisers might be thinking not only of this first choice but who could be next.

Bork v Scalia; Roberts v Luttig

In 1986, Reagan aides debated whether to name Scalia or Bork, both of whom were on the D.C. Circuit to a Supreme Court opening.

Patrick Buchanan, a former Nixon speechwriter who joined Reagan’s staff in 1985, had written in anticipation of vacancies: “The stakes here are immense – whether or not this President can leave behind a Supreme Court that will carry forward the ideas of the Reagan Revolution – into the 21st century. While Bork is [an] ex-Marine and brilliant judge, I would lean to Scalia for the first seat [of Reagan’s second term]. He is an Italian-American, a Roman Catholic, who would be the first Italian ever nominated … .”

Reagan opted for Scalia, then 50, who won easy Senate approval.

In 1987, for a new opening, Reagan chose Bork. But Democrats had in the 1986 midterm elections gained control of the Senate and were ready to oppose a judge with a controversial record that critics said would undercut civil liberties. Bork was defeated on a vote of 58-42.

Nearly two decades later, in July 2005 after Justice Sandra O’Connor announced she intended to retire, top advisers to George W. Bush were down to Roberts versus Luttig, with a couple of close runners-up that included Alito. Roberts, then on the D.C. Circuit, and Luttig, on the Richmond-based 4th Circuit, had worked together in the Reagan administration beginning in 1981 when they were on the team that prepared O’Connor for her confirmation hearings.

Vice President Dick Cheney was among those in the White House favoring Luttig, an uncompromising conservative with a combative reputation. Bush ultimately chose Roberts, known for a more collaborative style.

Before Senate hearings had begun, Chief Justice William Rehnquist died, and Bush nominated Roberts to the chief’s position. Bush then chose White House counsel Harriet Miers for the O’Connor spot. Miers, a graduate of Southern Methodist University law school who had scant constitutional law experience, faced sharp criticism from conservatives who believed she would hurt their cause. Bork called her nomination “a disaster on every level.”

Miers withdrew and Bush chose Alito, a 15-year veteran of the Philadelphia-based 3rd Circuit. The Senate confirmed him in January 2006, and O’Connor, who had announced her desire to retire more than six months earlier, stepped down.

That series of events illustrates a maxim of nomination political that might apply even more in today’s tumult. A president’s first choice may not be the final choice.