Since Donald Trump won the presidential election, I have been consistently asked three questions about the Supreme Court. Two seem obvious, and the third, at least to me, was surprising.
Can President Obama simply appoint Judge Merrick Garland to the court since the Senate has refused, for 250 days and counting, to act on the nomination?
How likely is it that the court’s jurisprudence on abortion will change now that Trump will be choosing justices?
And can Trump nominate his sister, a judge on the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, to the high court?
The first question is the most controversial. Even those who insist that Obama has the power to force the issue on Garland’s nomination agree it is unlikely he would try.
The Constitution provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court, and all other Officers of the United States.”
The Republican-led Senate, of course, has refused to even hold a hearing on Garland’s nomination, much less consent to his appointment. The Republicans’ position since Justice Antonin Scalia’s death in February has been that the next president should choose Scalia’s replacement.
In the past, it has been generally assumed that the Senate can kill judicial nominations simply by refusing to act upon them until the president leaves office. Two current members of the court — John G. Roberts Jr. and Elena Kagan — had their earlier nominations to lower courts end without the Senate taking votes.
But millions have signed petitions urging another view — that Obama gave the Senate a chance to advise him on Garland’s nomination, and because lawmakers did not vote one way or the other, the president is free to move on to the “shall appoint” part of the Appointments Clause.
Those who are urging such an approach often point to a Washington Post op-ed in the spring by lawyer Gregory L. Diskant. “Note that the president has two powers: the power to ‘nominate’ and the separate power to ‘appoint,’ ” Diskant, a former Supreme Court clerk, wrote. He acknowledged that following this approach would draw a lawsuit.
Diskant has found little support among constitutional experts, most of whom have said that “advise and consent” means what it has traditionally been understood to mean. Otherwise, the document would have said the president can make appointments unless the Senate steps in to veto his actions.
And a federal judge last week dismissed a lawsuit that would have forced the Senate to vote.
Liberals also have suggested a recess appointment for Garland. The chance would come in early January, in the time between when the current Congress ended and the next one began. Other justices have been appointed in recesses and later confirmed by the Senate.
But eventual confirmation is impossible in the current scenario, and Garland’s term would last only about a year.
The New Republic last week championed the idea in an article headlined “Obama Can and Should Put Merrick Garland on the Supreme Court.” But after proposing the idea, author David Dayen concluded: “This would be completely out of character for Obama,” and “the gambit would have an extremely low likelihood of permanent success — even if the [Supreme] Court didn’t rule the Garland appointment unconstitutional (and it probably would), he’d be out in a year.”
Notably, in separate events last week, liberal justices Ruth Bader Ginsburg and Sonia Sotomayor said that Trump will be choosing the court’s ninth justice.
In a post-election interview on CBS’s “60 Minutes,” Trump repeated his pledge to nominate antiabortion justices who could help overturn Roe v. Wade, the 1973 decision that said a woman has a constitutional right to seek an abortion.
If that happened, Trump said, abortion decisions would go back to the states, and some could ban it. Asked whether he was comfortable with the idea that women might have to go to other states to end their pregnancies, Trump replied: “Well, we’ll see what happens. It’s got a long way to go.”
Almost everyone can agree on that.
It became clear at the end of the court’s last term that there is a majority on the court to maintain Roe and the line of subsequent cases that have expounded on that constitutional right. The court has acknowledged the state’s interest in protecting fetal life but also has said a state’s restrictions cannot put an “undue burden” on a woman’s right.
The court in June found that Texas had violated that right with a law that, among other things, required doctors at abortion clinics to have admitting privileges at nearby hospitals and imposed expensive standards on clinics.
In a detailed and legalistic opinion, Justice Stephen G. Breyer said Texas’s assertion that the requirements were to protect women’s health could not be proved and were a pretext for simply making it more difficult for women to obtain the procedure.
Ginsburg more pithily said in a concurrence that laws that “do little or nothing for health but rather strew impediments to abortion, cannot survive judicial inspection.”
The decision was 5 to 3, which meant that even if Scalia had been voting, the law would have been struck down.
But what’s lost to neither side is that three of the five in that majority are Ginsburg, 83, Breyer, 78, and Justice Anthony M. Kennedy, 80. The replacement of only one would shift the balance.
Even so, the court moves incrementally. It is far from clear that even a majority of those who disagree with Roe would move quickly to dismantle it. But the possibility is motivating those on both sides of the divisive issue.
Trump himself has mused about nominating his sister to the Supreme Court, although he has said it is unlikely.
“I would love to, but I think she would be the one to say, ‘No way, no way,’ ” he said in a Fox News interview last year.
Judicial ethics experts said that federal laws would not prohibit Trump from nominating Barry, who was elevated to the appeals court by President Bill Clinton in 1999.
“I doubt the anti-nepotism statute covers it because it’s not a branch of government he controls,” said Richard Painter, a University of Minnesota professor who served as an ethics enforcer in the George W. Bush administration.
He and Stephen Gillers, a law professor at New York University, also agreed that a Justice Barry would not be constrained from ruling on all issues involving the federal government.
She would probably have to recuse herself “on those cases in which President Trump was seen to have a significant interest,” Gillers said. “That would not be every case involving the U.S. It would not be most such cases.”
But obstacles abound. For one, Barry is not on the list of 21 people from whom Trump has pledged to pick his nominee. For another, Barry, 79, is the older sister of the oldest man ever elected president. Presidents like their Supreme Court nominees to be a lasting legacy; Barry took senior status five years ago.
Also: See Abortion, above. The National Review has called Barry a “pro-abortion extremist judge.”
Barry, who served on the appeals court with Justice Samuel A. Alito Jr., was part of a panel that struck down a New Jersey ban on the later-term abortion procedure critics call “partial-birth abortion.”
Barry called the law a “desperate attempt” to undermine Roe. Besides pointing out that the Supreme Court had struck down a similar state law, she wrote that it was “based on semantic machinations, irrational line-drawing, and an obvious attempt to inflame public opinion instead of logic or medical evidence.” (The Supreme Court later upheld a federal version of the ban.)
So for those who supported Trump because of the importance of the Supreme Court, Barry is probably not what they were looking for.