I take it we all agree that Merrick Garland's nomination is a dead letter?
As the left-leaning TPM website observed back in October:
TPM went on to explain that:
Outgoing Senate Minority Leader Harry Reid (D-NV) said he is confident that he has laid the groundwork for Democrats to nuke the filibuster for Supreme Court nominees if they win back the Senate in November.
Envisioning Hillary Clinton in the White House and Democrats controlling the Senate, Reid warned that if a Senate Republican minority block her Supreme Court nominee, he is confident the party won't hesitate to change the filibuster rules again.
Such a move would be an extension of what Reid did in 2013 when he was still majority leader, eliminating filibusters (with a simple majority vote) on the President's nominees. There was only one exception: the Supreme Court. As it stands now, Democrats still need 60 votes to move forward with a Supreme Court nominee.
Reid said, however, that could change. ...
"They mess with the Supreme Court, it'll be changed just like that in my opinion," Reid said, snapping his fingers together. “So I’ve set that up. I feel very comfortable with that.”
I'm a supporter of judicial filibusters regardless of whose ox gets gored, as discussed in this post that dealt with the 2005 Gang of 14 deal. But my guess is that the GOP Senate majority will conclude that turn about is fair play. It probably is not Mitch McConnell's first choice, but any Democrat obstructionism on a Trump SCOTUS choice would lead to huge pressure being put on the Senate by the Trump voter base. So I don't see the judicial filibuster surviving in the next Congress.
So who will we see make it onto the Supreme Court, assuming Trump gets to pick somebody? (I'm betting Justice Ginsburg is just kicking herself right now for not hanging it up while Obama was President.)
You will recall that the original list included 10 judges: Steven Colloton of Iowa, Allison Eid of Colorado, Raymond Gruender of Missouri, Thomas Hardiman of Pennsylvania, Raymond Kethledge of Michigan, Joan Larsen of Michigan, Thomas Lee of Utah, William Pryor of Alabama, David Stras of Minnesota, Diane Sykes of Wisconsin and Don Willett of Texas.
The only one I now much about is Willett and that's mainly because I follow his Twitter feed, which suggests he'd make an amusing choice.
The second list added 11 more names: Sen. Mike Lee of Utah, US Court of Appeals Judge Margaret Ryan, Iowa Supreme Court Justice Edward Mansfield, George Supreme Court Justice Keith Blackwell, Florida Supreme Court Justice Charles Candy, US Court of Appeals Chief Judge Timothy Tymkovich, US District Court Judge Amul Thapar, US District Court Judge Federico Moreno and Michigan Supreme Court Chief Justice Robert Young.
Again, not a list about which I know very much. (Hey, I spend my working days studying Delaware judges not federal ones.)
But I wonder if Trump would not be smart to think outside the box and pick Ted Cruz. I'm not a Cruz fan, but everybody I know who has followed his work as a lawyer says he's a very smart and highly skilled lawyer. In the Senate, Cruz is a bomb throwing obstructionist who gums up the works. On the Supreme Court, that side of him would mean he'd out-Scalia Scalia. Plus, it clears Trump's 2020 primary deck of a potentially potent challenger. Finally, Cruz is the least likely person I can imagine that would fall for the Greenhouse effect.
The Current 8
By one scale, Anthony Kennedy has been affected by the Greenhouse effect to a greater degree than any Republican justices except for earl warren and David Souter. Assume Ginsburg leaves the court (one way or another) and, say, Ted Cruz is her replacement. Kennedy would no longer be the deciding vote. Instead (but see below), there now would be a 5-3-1 conservative majority. Does Kennedy go full John Paul Stevens/Harry Blackmun and become a consistent member of the liberal minority? Or does he swing back to the conservative side. My guess is the former. My guess--and I concede it's not a terribly informed one--is that Kennedy is now playing for the adoration of the Washington Post and NY Times editorial boards and the liberal law professors that will write about this period of the Court's history. As Wikipedia reports: "Kennedy displays the concern with his historical image that would lend credence to the Greenhouse Effect, for example by having his clerks clip all news stories about him."
All in all, the three Supreme Court justices over 70 are Kennedy (80), Ginsburg, (83), and Breyer (78). Granted, Supreme Court justices seem to live forever, but Trump still has a chance to replace all three and thereby create 6-3 conservative majority even if Roberts blossoms into a liberal in the Greenhouse. And, if the Chief Justice stays the course, we could be looked at a 7-2 conservative majority with three of the conservatives being under, say, 65. Maybe well under.
The Supreme Court is the reason many conservatives held their nose and voted for Trump. Those folks doubtless will be looking for ways to hold his feet to the fire. Mitch McConnell will have to lead that charge I suspect (or be pushed into doing so).
Gerard Magliocca is thinking similar thoughts about Cruz:
I’m not advocating this, but wouldn’t the President-elect be smart to get Ted Cruz out of the Senate and offer him the Scalia seat. Conservatives would love the pick, he’s clearly qualified, and then Trump wouldn’t have to deal with him anymore. (I’m not thrilled by this prospect, but it does make sense, no?)
I guess I am advocating it and more or less think it'd be a good idea.