Donald Trump rose to power by defying and defeating the collective Republican Establishment, but when it comes to his Supreme Court, Trump has promised to basically be a tool of the conservative movement. At his most recent press conference, Trump reiterated that he was deferring to the Federalist Society and the Heritage Foundation, two of DC's most prominent right-wing think tanks, a promise Trump has been making since the summer.
Getting a judge to replace the late Justice Antonin Scalia, a conservative legal icon, will be one of Trump's top priorities after the inauguration. In many ways, a future Trump administration scares liberals because of its potential unpredictability, but when it comes to the Supreme Court, the fear is different—Trump seems almost certain to pick someone willing to fight against progressive social causes, even though Trump himself hasn't given those issues much airing on the campaign trail.
The Federalist Society, a group founded by law students in 1982, favors judges with conservative legal principles such as an anti-regulatory agenda, a strict interpretation of the Constitution, and a limit on the power of civil rights legislation, explained Amanda Hollis-Brusky, an associate politics professor at Pomona University who wrote Ideas with Consequences: The Federalist Society and the Counter-Revolution.
"They have become the organization monopolizing the credentialing and vetting of judges," Hollis-Brusky said of the Federalist Society, which monitors judges and pressures them to uphold conservative legal interpretations. "Conservatives have said for a long time the reason Republicans have a hard time finding reliable conservatives is because people get on the Supreme Court and kowtow to the liberal-leaning Georgetown set. But the Federalist Society ensures they're going to be faithful to their principles and keeps them accountable."
The Federalist Society, which grew up alongside the Reagan administration and helped nominate Justice Scalia, has grown increasingly powerful in the past few decades. When George W. Bush attempted to appoint his lawyer Harriet Miers, who was not a Federal Society member, she was pressured to turn down the nomination by angry conservative politicians.
"One could imagine Trump appointing a little-known judge he knows… But because of what happened with Harriet Miers, if you're conservative, even if you're as unconventional as Trump, this is such a high-stakes appointment that you have to go with a known entity," said Hollis-Brusky. "Conservatives are not going to roll the dice on someone they don't know."
Trump's 20 potential nominees are all strict constructionist, pro-life judges with views similar to Scalia's, said Richard Hasen, the chancellor's professor of law and political science at UC Irvine's law school.
"In the middle of the campaign, there were a number of conservatives skeptical that Trump was actually conservative and that he would appoint conservative justices so on the campaign he took the unprecedented step of naming people… the exclusive list from which he'd pick his nominee," Hasen told me.
"While there have been analyses that argue that some of the potential appointees are more conservative than others," Hasen continued, "they are all seen as conservative on issues that seem to matter to the conservative legal movement."
The Federalist Society's role is to be expected in any Republican administration. The Heritage Foundation's involvement is a little odder, if only because Trump was widely expected not to do much to advance a conservative agenda on social issues. But he may be placating that part of the Republican base by giving them the courts.
"In the campaign, you saw Trump come out vociferously against abortion and court evangelicals," said Hollis-Brusky. "The fact that he's allowing [former South Carolina senator] Jim DeMint and the Heritage Foundation a say is payback for that evangelical support, so I do think you will see a pro-life, anti-choice justice as one of his first picks."
Many members of the Heritage Foundation, which has a long history of advising Republican politicians, are working on the Trump transition team, and the organization gave Trump a "Blueprint for a New Administration" with priorities including the repeal of Obamacare and an increase in the defense budget. Now Heritage is pushing Trump to nominate Justice Bill Pryor of Alabama, John Malcolm, the foundation's legal studies director, told the Hill this week.
"He has a titanium spine," Malcolm told the Hill of Pryor, a staunch conservative who vehemently opposed Roe v. Wade and fought the ACLU in many church-versus-state cases. Malcolm said that conservatives indeed wanted to avoid appointing any Republican justice who might drift leftward—a charge often leveled against Chief Justice John Roberts, who voted not to overturn Obamacare in 2012.
"They want to get a judge who is going to follow the Constitution according to its text, structure, and public meaning," Malcolm continued. "They want somebody who will have the courage of their convictions and not be swayed by the editorial board of the New York Times or what the cocktail circuit in Georgetown has to say."
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