By David S. Olson, Esq.

The future direction of the United States Supreme Court was a campaign issue this year because decisions of the Supreme Court affect all Americans in their personal lives and many businesses. For example, in 2015 alone, the Supreme Court handed down decisions regarding same-sex marriage, free speech rights, housing, pregnancy, and employment discrimination claims, and pollution limits, to name just a few.   One of the first things President-elect Donald Trump will do upon taking office is select someone to fill the seat left vacant by the passing of conservative Justice Antonin Scalia earlier this year.  Based on a previously posted list of 21 candidates from whom the President-elect stated he would choose, Mr. Trump will be looking primarily to individuals who have already proven themselves to be conservative judges.  As such, President Trump’s first selection should not change the political composition of the Court from the time Justice Scalia was on the bench.

Any additional picks would, however, potentially alter the Court’s liberal/conservative composition and thus future decisions for potentially years to come. For example, Justice Ruth Bader Ginsburg, appointed by Bill Clinton, is solidly liberal. She is the oldest member of the Court and turns 84 in March.  Justice Anthony Kennedy, a Reagan appointee who occasionally sides with the Court’s liberal block, is, at 80, the Court’s second oldest member. Another Clinton appointee, liberal Justice Stephen Beyer, recently turned 78, making him the third oldest member of the Court.

Trump’s list, which was released initially in May of 2016 and supplemented in September 2016, is comprised entirely of sitting judges with proven track records with the sole exception of Republican Senator Mike Lee of Utah. Senator Lee previously served as an Assistant United States Attorney and clerked for conservative Supreme Court Justice Samuel Alito, Jr., a George W. Bush appointee.  The list contains two state court judges from Michigan, and state court judges from Colorado, Utah, Minnesota, Wisconsin, Texas,  Georgia, Florida, Iowa, and Kentucky.   Also included are federal court judges from the third, sixth, eighth, tenth, and eleventh circuit courts of appeal, as well a United States Court of Appeals Judge for the Armed Services.  Three of the potential nominees clerked for Supreme Court Justice Clarence Thomas, two clerked for Justice Kennedy, one clerked for Justice Scalia, and one for Justice Alito.

History shows that Presidents can live to regret their Supreme Court appointments. President Eisenhower famously called his Supreme Court nominations (which included liberal Chief Justice Earl Warren) the “biggest damn fool mistake I ever made,” Richard Nixon unwittingly appointed the justice who went to author the seminal abortion opinion, Roe v Wade (Justice Harry Blackmun), and, more recently, Justice David Souter has turned out to be far more liberal than contemplated by President George W. Bush.  It appears, based on his published list of candidates, that President-elect Trump has already put considerable time, thought, and effort into maximizing the chance that he can avoid the same fates as Presidents Eisenhower, Nixon, and George W. Bush.  History will be the judge.

Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog. If you have any questions, please feel free to contact David Olson by email at or telephonically at (213) 629-5700.

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