The Trump Court

Donald Trump's stunning victory in the presidential election comes with an immediate opportunity: a nomination to replace the late Antonin Scalia on the U.S. Supreme Court. What a President Trump will do with that opportunity is anyone's guess.

Conservatives have been repeatedly disappointed by Republican nominees of the last 25 years. They are looking for another Scalia, Alito or Thomas, not another Souter, O'Connor, Kennedy, or even Roberts. Conservatives jokingly coined the term "the Greenhouse effect" for Republican-appointed justices who appeared to enjoy praise from former New York Times Supreme Court reporter Linda Greenhouse by "growing" into their roles through parting ways with more conservative colleagues on key decisions.

In contrast, liberals have to go back to Justice Byron White for a justice whose decisions in major constitutional cases did not broadly align with the politics of the president making the appointment.

Trump released two lists of potential nominees with 21 names during the campaign. The lists were full of qualified candidates, but like most short lists was also designed both to "name check" constituencies and to reassure oft-disappointed conservatives that Trump would honor their preferences when it came to picking Supreme Court justices.

The relationship between Trump and conservatives is, at best, a marriage of convenience. To say the least, they are not in full alignment on the Supreme Court. Unlike conservatives, Trump appears, at best, to have been a late and grudging convert to any questioning of Roe v. Wade. It is unlikely that he would welcome a reversal of that decision. Likewise, Trump is positively supportive of Kelo v. City of New London, the takings case that rejected robust review of government takings designed to help private developers and is anathema to conservatives.

As importantly, while conservative voters fully backed Trump, for the most part conservative intellectuals were either tepidly supportive or outright hostile to his candidacy.

Given that Trump's election is, if nothing else, unconventional, it at least provides the opportunity for fresh thinking about who should serve on the Supreme Court. There are plenty of people who are qualified for the position who are not from the same small set of elite law schools; have not served on the D.C. Circuit; or have not been a Supreme Court clerk. The deliberations of the Supreme Court would profit from including someone who has run or advised businesses for a substantial portion of his or her professional life; has run for or held public office; has been a trial court judge; or has been a state court judge.

Prominent Trump supporter Peter Thiel, a libertarian, gay, immigrant internet tycoon who does not practice law but went to Stanford Law School and clerked for the 11th Circuit, would certainly not fit into the categories within which most nominees fall.

Justice Scalia himself, in his dissent in the gay marriage case Obergfell v. Hodges, called the Supreme Court "strikingly unrepresentative" of the country:

"[T]his Court ... consist[s] of only nine men and women, all of them successful law

yers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination."

Politically, no nomination for Trump will be easier than this one. His nominee is unlikely to face

significant resistance in the Senate. There will be 52 Senate Republicans who will likely approve his pick. Most importantly, the Supreme Court's balance will not change. Even if the new justice is just like Scalia, we will all still live in Justice Kennedy's world.

Senate Democrats probably won't use the filibuster on a nominee who will not change the Supreme Court's balance. Such a deployment of the filibuster would be likely to end it, given that it has already been ended for other judicial nominees by Sen. Harry Reid in 2013.

It is almost certain that Senate Democrats will not be able to gain control of the Senate after the 2018 election. They will be defending 25 of 33 seats up for election in 2018. Even in the best of circumstances, it will be difficult to do better than winning three out of four of these seats.

Liberals are likely to fight very hard against a nominee who would change the balance of the Supreme Court. If a replacement for a liberal or moderate justice is to be appointed later in Trump's term, the filibuster would be more useful to deploy against a conservative nominee then than it is now.

The good news for conservatives is that Trump is likely to nominate a candidate who will please conservatives. That is what makes the most sense for him politically in the near term. That nominee is also highly likely to be confirmed.

The bad news for conservatives is that Trump doesn't owe conservatives anything. He probably has a better relationship with Sen. Chuck Schumer, the new leader of the Senate Democrats, than he has with House Speaker Paul Ryan.

The world could look very different if and when the opportunity for a transformative nomination arises. If he has another nomination during his presidency, that nomination will be dependent upon Trump's political needs at the time. No one can predict what deal President Trump might make then, or whether he'll make it with Sen. Mitch McConnell or Sen. Schumer.