Trump the Supreme Court and the Opposition

Once he assumes office, President Donald Trump is expected to promptly nominate someone to replace Justice Antonin Scalia on the Supreme Court. This, along with subsequent nominations to the Supreme Court and lower courts, will be among his most consequential decisions.

During the campaign, Trump initially identified two appellate court judges — Diane Sykes of the 7th Circuit and William Pryor of the 11th Circuit — as the sort of individuals he would name to the high court to replace Scalia. Later during the campaign, Trump released a list of 11 names — later expanded to 21 — of potential nominees.

Senate Democrats are unlikely to be particularly pleased with any Trump nomination, particularly after Senate Republicans refused to consider President Obama’s nomination of Judge Merrick Garland. Given Republican control of the Senate, however, they may not be able to do much about it. (And, just for the record, let me reiterate that President Obama lacks the power to bypass the Senate on the Garland nomination.)

Back in 2013, after Republicans filibustered Democratic nominees as Democrats had filibustered Republican nominees, then-Senate Majority Leader Harry Reid (D-Nev.) invoked the “nuclear option,” eliminating the filibuster for lower court and executive branch nominees. As a technical matter, Reid’s move (accomplished by a simple, party-line majority vote) left the filibuster in place for Supreme Court nominees, but there was little question that such a filibuster would not last.

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