The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


When Trump makes a Supreme Court nomination


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.

Just one month ago, Reid indicated that Senate Democrats—were they to obtain control of the Senate—would not allow Republicans to filibuster a Clinton-nominated Supreme Court pick. As Talking Points Memo reported:

"I really do believe that I have set the Senate so when I leave, we're going to be able to get judges done with a majority. It takes only a simple majority anymore. And, it's clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I've told 'em how and I've done it, not just talking about it. I did it in changing the rules of the Senate. It'll have to be done again," Reid told TPM in a wide-ranging interview about his time in the Senate and his legacy.

"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."

Senate Democrats may argue that there is something illegitimate about the Senate's failure to act on a judicial nomination, in effect holding open a seat for the next president to fill. I share the view that such actions constitute bad behavior, but they are perfectly constitutional and quite precedented. Numerous judicial nominees have had the misfortune of getting nominated to appellate courts within a year of a presidential election, only to have the Senate sit on its hands. Often, as occurred in 1992, this is done with the express purpose of preserving vacancies for the next president.

I've long argued that this is no way to maintain an independent federal judiciary, that all nominees should receive prompt up-or-down votes, and that the Senate should be fairly deferential to a president's qualified nominees. But this has not been the rule.

Given Reid's decision to go nuclear in 2013—and threat to go further, if need be—there is no reason for Senate Republicans not to eliminate the filibuster for nominations once and for all (a position I've consistently maintained for years). If a majority of the Senate is willing to confirm a presidential nominee, he or she should be confirmed.