Conservatives’ wishes for the next Supreme Court justice boil down to a few words: no more Souters.
The reference is to former Justice David Souter, dubbed by a White House aide as a “home run” for conservatives when he was nominated by President George H.W. Bush in 1990 to replace the liberal William Brennan. As it turned out, Souter generally was a liberal vote for most of his 18 years on the court.
But conservatives who care about the court say they have no such worry this time around. They feel confident that whomever President Donald Trump nominates for the Supreme Court, they won’t be looking back with regret in the years to come.
The leading contenders from a list of 21 names Trump rolled out during his campaign are three federal appeals courts judges who have met with Trump: Neil Gorsuch, Thomas Hardiman and William Pryor, according to a person who is familiar with the process. The person spoke on condition of anonymity because he was not authorized to publicly discuss about internal decisions.
Trump said he plans to announce his choice on Thursday, and told Fox News that he has basically settled on a nominee, “subject to change at the last moment.”
“They all would be excellent, excellent choices. They were all specifically chosen with the president’s commitment in mind” to choose a justice who would be similar to Antonin Scalia, who died nearly a year ago, said Carrie Severino, a conservative activist and former law clerk to Justice Clarence Thomas.
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That has not always been the case when Republican presidents have had a chance to leave their mark on the court.
Souter was one of five justices put on the nine-member court by Republican presidents over a 12-year span. While the court moved to the right in that period, it did not become the conservative bulwark those presidents hoped for.
The court’s 1992 decision reaffirming the right to an abortion, for which Souter wrote the majority opinion along with Reagan appointees Sandra Day O’Connor and Anthony Kennedy, was an enormous disappointment to abortion opponents who had thought they had a court majority to overturn Roe v. Wade.
Souter, a state judge in New Hampshire and briefly a federal appeals court judge, became the symbol of what Republicans were supposed to avoid, a “stealth” candidate with a scant record of dealing with the range of issues that come before the high court.
While serving as Alabama’s attorney general before becoming a judge, Pryor in fact once wrapped up a speech with a prayer for “no more Souters.” He later said he was joking, but the subject is no laughing matter to conservatives.
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Usually less than a quarter of the court’s cases end up with liberals and conservatives on opposite sides, but those are the ones, including abortion, gay rights and guns, that people care most about, said the John Malcolm of the right-leaning Heritage Foundation.
“That’s why the ‘no more Souters’ thing is very real,” he said. “There are only nine of them and they serve for a very long time.”
Gorsuch, Hardiman and Pryor have been judges for 10 years or longer, and have the paper trail that Souter lacked.
“It’s not surprising that when we get to down what looks like the real short list, it’s appeals court judges. That’s about being absolutely sure we’ve got the record straight,” said Christine Nemacheck, a government professor at the College of William and Mary in Williamsburg, Virginia, and the author of a book about the Supreme Court selection process.
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A recent study of the potential choices puts Gorsuch and Pryor high on a scale of judges whose approach to the law resembles Scalia’s in their fealty to the text of the Constitution and to laws as they were understood when written. Hardiman more resembles Chief Justice John Roberts and Justice Samuel Alito in that regard, lead author Jeremey Kidd said.
“We wanted to show what it would mean to a general fan of Scalia to have someone like him,” said Kidd, a professor at the Mercer University law school in Macon, Georgia.
“I personally know a good two or three dozen people who voted for Trump solely because they thought he’d be better on Supreme Court justices,” Kidd said.
A fifth of voters nationwide said Supreme Court appointments were the most important factor in determining their presidential vote, and nearly 6 in 10 of them backed Trump, according to Election Day exit polls.
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Souter is not the only justice who has disappointed conservatives.
Kennedy has sided with the liberal justices on gay rights, as well as some cases involving race, the death penalty and the rights of people detained without charge at the Guantanamo Bay naval base.
Even Roberts has lost favor among some conservatives, principally for the two opinions he wrote that preserved President Barack Obama’s health care overhaul. During the campaign, Trump himself called Roberts “an absolute disaster.”