Trump expected to use senate list in Supreme Court nomination

Central question is whether justice is a Hamiltonian or Jeffersonian conservative

By Jessica Shumaker
BridgeTower Media Newswires

ST. LOUIS, MO - An expert on the U.S. Supreme Court believes Donald Trump will choose a nominee from a list he has already submitted to the senate.

"The Senate really cares a lot about this seat and wouldn't be inclined to confirm anyone who wasn't a respected conservative vetted by the leading conservative lawyers organizations," said Jeffrey Rosen, president of the National Constitution Center and a George Washington University Law School professor.

Rosen spoke recently at the Kansas City Public Library's Plaza Branch. The event was hosted by the library, the Truman Library Institute and the Western District of Missouri Historical Society.

What will be more significant, he said, is whether the justice is more of a Hamiltonian conservative, in favor of national power, or Jeffersonian conservative, more interested in state's rights, said Rosen who is also an author, a nonresident senior fellow of the Brookings Institution and contributing editor for the Atlantic.

He noted a split between Justice Antonin Scalia, whose seat became vacant following his death in 2016, and Justice Clarence Thomas.

He said Scalia was more of a Hamiltonian conservative, and was generally in favor of upholding national power in cases like one involving the federal government's power to pre-empt states that wanted to legalize marijuana.

Thomas, a Jeffersonian conservative, he said, "voted to restrict Congress' power in ways that would call into question much of the post-New Deal regulatory state."

"Whether an appointee is a states-rights conservative or nationalist conservative will make a huge difference on how aggressive the court will be in aiding President Trump in dismantling much of the regulatory state," he said.

Rosen also said an appointee's temperament will be important. He drew distinctions between Chief Justice John Roberts, who has expressed an interest in upholding the institutional legitimacy of the court by seeking unanimous opinions, and Justice Anthony Kennedy, who is less likely to seek compromise.

"If it's an uncompromising, principled libertarian like Justice Kennedy, or a devotee of originalism as enthusiastic as Justice Thomas, they they're not going to find much compromise and we could see even more 5 to 4 splits," he said.

Rosen said if Trump gets to appoint a second justice, it would represent "a totemic sea change in the court."

It would transform the balance of the court to a firm 6-3 conservative majority, and Trump has pledged to appoint judges who will overturn Roe v. Wade, Rosen said.

In a question and answer session following his talk, Rosen was asked if there was any indication there may be future Constitutional amendments, particularly in the case of Citizens United, a landmark campaign spending limits case.

Rosen pointed to Republican control of state legislatures and said amendments could plausibly be put forth by state constitutional conventions. He said among the highest-polling issues, term limits and balanced budget initiatives have higher support, with overturning Citizens United coming in third.

He said it's unlikely that Congress will support changes for term limits or against Citizens United.

Another attendee asked about the precedent of the Senate's failure to hold a confirmation hearing on President Obama's appointee Merrick Garland. He noted Garland handily surpassed the longest waiting justice in history, Louis Brandeis, who waited 125 days between appointment and confirmation hearing.

He said the court has been political from the beginning, noting John Adams' move to reduce the size of the court to deny Thomas Jefferson an appointment, but polarization is acutely felt today.

"We are in one of those periods where the court is tremendously politicized," he said.

Published: Mon, Jan 23, 2017