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Nov. 15 — A full U.S. Supreme Court bench is likely by the end of the current term, which ends in June, Reginald J. Brown, of Wilmer Cutler Pickering Hale and Dorr LLP, Washington, told Bloomberg BNA Nov. 14.
There will likely be a flurry of activity in the Senate Judiciary Committee next year, in stark contrast to the months of inaction on President Barack Obama’s high court nominee Merrick Garland.
In March, GOP Senators vowed to hold up any Supreme Court nominee until after the 2016 presidential election.
Now that Donald Trump has won the presidency, Garland’s nomination is “dead in the water,” John G. Malcolm, of the conservative think tank The Heritage Foundation, Washington, told Bloomberg BNA in a Nov. 14 e-mail.
Although President-elect Trump is likely to act quickly to nominate someone, how quickly that person will actually take the bench depends on Senate Democrats, Malcolm said.
The Trump team will start thinking seriously about the next Supreme Court nominee once the senior leadership of the White House and Department of Justice are in place, Brown, who helped vet potential judicial nominees during the George W. Bush administration, said.
A full Supreme Court bench is a high priority, but the new administration will want to get the “machinery in place” first, Brown said.
That means deciding on an attorney general and other senior Justice Department officials, who will shepherd the nominee through the confirmation process, he said.
After those officials are in place, the administration will likely move very quickly to nominate someone, Brown said.
“Twenty of the 21 names on President-Elect Trump’s list are sitting judges who have already been vetted, which hopefully will expedite the process of sending a nomination to the Senate for confirmation,” Malcolm said.
But that really depends on Senate Democrats, he said.
It really comes down to “who President Trump nominates and what kind of ‘payback’ the Democrats decide to exact for having lost the election and for the Senate’s having held up the Merrick Garland nomination,” Malcolm said.
If Democrats attempt to filibuster Trump’s nominee, there will likely be a “robust discussion about whether the Republicans will extend the nuclear option,” he said. Malcolm was referring to the Democrats’ elimination of the filibuster for lower court nominees in 2013.
Before the election, “when the Democrats were confident that they were going to win the White House and take control of the Senate,” Senate Minority Leader Harry Reid (D-Nev.) and Sens. Charles E. Schumer (D-N.Y.) and Tim Kaine (D-Va.), the vice presidential nominee, “were telegraphing that they would have no hesitation about extending the nuclear option to Supreme Court nominees if a Republican minority attempted to filibuster whomever President Clinton nominated,” Malcolm said.
“Now the shoe is on the other foot,” he said.
But it isn’t a given that Democrats will put up a fight over the next high court seat, Brown said.
Senate Democrats have a tough election coming up in 2018, with a number of Democrats facing re-election in traditionally “red states,” he said.
Because the Supreme Court has been conservative-leaning for many years, this nomination likely won’t change the status quo, Brown said.
So Democrats may not want to block this nomination, and instead wait for the next vacancy, he said.
Notably, three current justices are in their late 70s or early 80s—center-right Justice Anthony M. Kennedy, liberal icon Justice Ruth Bader Ginsburg and left-leaning Justice Stephen G. Breyer.
Regardless of how quickly the president-elect and the Senate acts, “the earliest we’ll likely see someone confirmed to fill the vacancy is the spring,” Brianne Gorod, of the progressive think tank Constitutional Accountability Center in Washington, told Bloomberg BNA in a Nov. 14 e-mail.
That means “most, if not all, of this term’s cases will have been argued before the vacancy is filled,” she said.
Because the court’s “practice has been that Justices do not participate in cases that were argued before they joined the Court,” that also means that “most, if not all, of this term’s cases will be decided by an eight-Justice Court,” she said.
It’s possible that the court might hold off argument in cases that would otherwise have been evenly split, Gorod said.
The court has already informally held three cases that could divide the eight-member court.
Some cases might disappear from the court’s docket altogether.
One of the three informally held cases might settle as a result of election results in Missouri. That case, Trinity Lutheran Church of Columbia, Inc. v. Pauley, U.S., No. 15-577, review granted 1/15/16 , deals with the relationship between church and state.
Moreover, one of the term’s most high-profile cases could be affected by the federal presidential election results, Gorod said, referring to Gloucester Cty. Sch. Bd. v. G. G., U.S., No. 16-273, review granted 10/28/16 .
That case is about a transgender high-schooler’s access to the boy’s restroom, she said.
“The lower court’s decision that he should be able to use the restroom was based on an opinion letter issued by the Department of Education,” Gorod said.
“If the Trump Administration were to withdraw that letter, that would fundamentally change the case,” she said.
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