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For Supreme Court, 2016 Had More Question Marks Than Certainty

Dec 26, 2016
Originally published on December 27, 2016 8:45 am
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ARI SHAPIRO, HOST:

As 2016 draws to a close, the third branch of government - the judiciary - is very much in flux. There are about a hundred judicial vacancies in the federal court system that President-elect Donald Trump will be able to fill. The most notable is on the Supreme Court. It had a roller coaster of a year, as NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: On January 20, 2016, exactly a year to the day before a new president would be sworn into office, Supreme Court Justice Antonin Scalia announced the court's 8 to 1 decision reinstating the death penalty for two Kansas brothers.

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ANTONIN SCALIA: Overwhelming the joint sentencing proceeding was evidence of how these defendants tortured their victims, acts of inconceivable cruelty and depravity, described first hand for the jury by the lone survivor.

TOTENBERG: It was the last time the 79-year-old Scalia would announce an opinion he'd authored for the court. Weeks later on a hunting trip to Texas, the conservative icon died in his sleep. Republicans were shocked and horrified, not only was Scalia a revered figure in the conservative community, but he was the fifth conservative vote on a court that was often split along liberal-conservative lines. What's more, though it was an election year, there was plenty of time to confirm a replacement and no precedent for stalling nearly a year to stave off that possibility. Nonetheless, within hours of Scalia's death, Senate Republican leader Mitch McConnell vowed to block consideration of anyone President Obama would nominate to the court. The choice, McConnell said, should be made by the next president after the election.

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MITCH MCCONNELL: Give the people a voice in filling this vacancy.

TOTENBERG: Obama tried to finesse an appointment, picking as his nominee a man Republicans had urged him to appoint for years, Merrick Garland, the center-left chief judge of the U.S. Court of Appeals for the District of Columbia and a man revered by his colleagues on both the right and left. Obama kept pointing out that he had fulfilled his constitutional duty.

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PRESIDENT BARACK OBAMA: Now it's time for the Senate to do their job. Give Judge Garland a hearing. Give Judge Garland an up or down vote.

TOTENBERG: Still, McConnell didn't budge. His position was so unprecedented that many Republicans, in addition to Democrats, thought the GOP would pay a price at the polls for such obstructionism. The ploy, however, turned out to be ingenious and twisting arms and making quiet threats, McConnell managed to keep his own Senate troops in line. Meanwhile, Donald Trump was catering to the socially conservative base of the Republican Party by promising to name a Scalia-like conservative to the court. And while Hillary Clinton rarely mentioned the court on the campaign trail, Trump drove the issue home relentlessly day after day.

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DONALD TRUMP: You have no choice. You got to go for Trump - Supreme Court justices.

Look, Supreme Court Justice Scalia - great, was supposed to live for a long time. He died.

TOTENBERG: And to further allay fears among social conservatives, Trump released a list of 21 potential Supreme Court nominees largely compiled by the conservative Heritage Foundation. Moreover, in the aftermath of the election, he said what he had not before, that he would fill the Scalia vacancy with someone from that list. The odds-on favorite among those on the list is Federal Appeals Court Judge William Pryor of Alabama, mainly because the attorney general designate Jeff Sessions is also from Alabama and has considerable influence with President-elect Trump. Judge Pryor is an outspoken critic of the Supreme Court's decisions on abortion, homosexuality and the so-called Miranda warning. But when he was Alabama's attorney general, he won points among many for his role in removing the state's chief justice for refusing to carry out a federal court order to remove a Ten Commandments monument from the courthouse.

Also believed to be at the top of the short list is Judge Diane Sykes, a federal appeals court judge from Wisconsin with a bedrock conservative record. She authored an opinion expanding the rights of employers to limit their workers access to contraceptives on religious grounds. She wrote an opinion striking down Chicago's law banning firing ranges within city limits. And she wrote an opinion mandating state subsidies for anti-gay religious groups on college campuses, a position subsequently reversed by the Supreme Court.

Also believed to be on the Trump shortlist are other serious conservative judges from the federal appeals courts. Among them Raymond Kethledge of Michigan, who ordered the IRS to turn over a list of conservative groups it had targeted for examination. Judge Thomas Hardiman of Pennsylvania, who dissented when his court upheld a New Jersey law that required citizens to show a demonstrated need for carrying a gun in public. Judge Raymond Gruender of Missouri, who wrote a decision upholding state-mandated suicide warnings before abortions. And Judge Stephen Colleton, who is known for decisions reversing major verdicts that favored whistleblowers and consumers. Judge Colloton is from Iowa, the home state of the chairman of the Senate Judiciary Committee Charles Grassley.

Many of these potential nominees are said to have a sympathetic personal story. Judge Sykes, for instance, raised two children as a single mother after her divorce. Judge Gruender, the son of a janitor, had a childhood touched by family violence. In 1986 when he was a law student, His father pointed a gun at him, his sister and a younger brother. Gruender and his sister were shot, but Gruender was able to knock his father to the floor, saving his 12-year-old brother.

There are other names on the Trump list. And as we have seen with other high-profile slots, Trump is more than willing to change his mind. But with Trump and his team now pushing to name and confirm his Cabinet, naming a Supreme Court nominee is not immediately on the front burner. It will be after the new president is sworn in. An announcement is expected in January or early February, in all likelihood, with confirmation hearings sometime in March. And unless there are unforeseen difficulties, a vote by the full Senate sometime in April. Even if the Senate is able to meet that schedule, however, the Supreme Court term will be almost over, with just six days of oral arguments left on the schedule in late April. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.