When President Donald Trump unveils his second Supreme Court pick Monday night with the prime-time flourish of a reality show star, he will lay a momentous marker in modern political history.
“An exceptional person will be chosen!” Trump tweeted on Sunday, showing his glee at making a selection that will put him in the national spotlight he craves with a cherished win decades in the making for his Republican supporters.
Trump’s pick will cement a 5-4 majority on the court for conservatives who could quite possibly dominate for a generation and, combined with his aggressive efforts to appoint judges to other federal courts across the country, ensure that the imprint of his contentious presidency will endure long after he has left office.
In many ways, Trump’s pick will further empower the conservative backlash against progressive victories of the Obama era, on issues like gay rights, immigration and health care legislation that set a torch under his shock general election campaign. Some of those victories were made possible by the swing vote of Anthony Kennedy, whose retirement handed Trump a golden ideological opening.
Liberal horror and conservative delight about the implications of the pick have crystalized into a debate about the newly constituted court’s potential to overturn Roe v Wade, the landmark 1973 decision that upheld a legal right to an abortion.
Yet the focus on abortion fails to do justice to the sweeping changes that could be unleashed over time by a solidly conservative court.
The new justice could sway cases that define the role of religion in public life, determine the scope of gun rights, endorse a more restrictive interpretation of civil rights legislation and further loosen regulatory constraints on big business.
The new majority will essentially leave Chief Justice John Roberts, appointed by President George W. Bush, as the only likely potential swing vote from the court’s right wing justices. That fact alone reflects just how conservative the jurisprudence of the nation’s highest bench is likely to be in the years to come.
“It’s an historic decision. It’s about more than the next election,” Democratic Sen. Dick Durbin of Illinois on NBC’s “Meet the Press” said Sunday. “It’s about what country the United States of America is going to chart as its course in the future on this Supreme Court.”
Meet the contestants
Trump spent the weekend at his New Jersey golf resort mulling over his final decision, but said that he was down to four candidates who still had a chance of being invited to the White House for their national televised coming out party on Monday night.
The rollout will be modeled on the seamless presentation in January 2017 of the President’s first Supreme Court nominee, Neil Gorsuch, in what was undeniably one of his most successful and most well-managed moments as President.
He did not reveal his short list. but he is believed to be considering three men and one woman, all of whom have strong conservative credentials.
They include Judge Raymond Kethledge, 51, who sits on the 6th US Circuit Court of Appeals, who would puncture the Ivy League aura that cloaks the Supreme Court since he studied law at the University of Michigan and not Harvard or Yale.
Trump is also believed to be studying Brett Kavanaugh, 53, of the US Court of Appeals for the DC Circuit and a Yale Law School graduate. Kavanaugh worked in the administration of each President Bush and also for independent counsel Kenneth Starr in the investigation that eventually led to the impeachment of President Bill Clinton.
The President is also said to be intrigued by Amy Coney Barrett, 46, whom he nominated to the 7th US Circuit Court of Appeals, was a Notre Dame law professor and clerked for the late Antonin Scalia — the gold standard for conservatives in a Supreme Court nominee.
Thomas Hardiman, 53, who sits on the 3rd US Circuit Court of Appeals, is also thought to be on Trump’s list. Hardiman, who drove a cab as he worked his way through college, was in the running for the seat that eventually went to Gorsuch.
Each of the candidates has a judicial paper trail and list of past comments that could concern Trump and that will be highlighted by Democrats in a confirmation hearing but also draw conservative support.
Kavanaugh’s time in Bush administrations, for example, could count against him with a President who is suspicious of the political establishment. Hardiman is seen by conservatives as having a strong record on the Second Amendment. Barrett has already crossed swords with Democrats in her Senate confirmation hearing for her current job, when California Sen. Dianne Feinstein said that religious “dogma” lived loudly in her. The New York Times reported Sunday that Trump found Kethledge a little dull and worried about his record on immigration. The President’s hardline policy approach means the issue could well end up before the court soon.
Senate Republicans prepare for battle
Still, for conservative activists, such distinctions between the potential nominees are quibbles.
Given GOP control of the Senate and the chamber’s Republican leader Mitch McConnell’s abolition of the filibuster for Supreme Court nominations during the Gorsuch confirmation saga, any of the four is expected to have a strong chance of confirmation.
Democrats have little leverage as they try to halt the nomination — though the court’s rightward lurch could stoke liberal turnout in the midterm elections in which the House of Representatives is in play. Perhaps it will fire up Democrats to embark on the decades-long quest to remake the ideological balance of the court that the GOP has used to enthuse its grassroots voters and that Trump harnessed in 2016.
For now, Democrats are piling pressure on Republican Sen. Susan Collins of Maine, who has expressed disquiet about the nomination of a judge who might overturn Roe v. Wade. Alaska GOP Sen. Lisa Murkowski is in the spotlight for similar reasons.
But both senators voted to confirm Gorsuch, who would be expected by conservative activists to vote to return decisions about abortions to the states.
And Democrats cannot even be sure of holding their line against Trump’s pick.
Several senators in states where Trump won big in 2016, like Jon Tester in Montana, Joe Donnelly in Indiana, Heidi Heitkamp in North Dakota and Joe Manchin in West Virginia, are caught between the party’s riled up liberal base and their own socially conservative voters.
One Democrat from a red state, Alabama’s Doug Jones, told CNN’s “State of the Union” Sunday that he did not rule out voting for Trump’s nominee.
“I’m open to voting yes. I’m open to voting no. We don’t know who this nominee is going to be yet. I don’t think my role is a rubber stamp for the President, but it’s also not an automatic, knee-jerk no either,” Jones said.
A boon for Trump
While Democrats are flailing, Trump can hardly lose.
It is not exaggeration to say that the prospect of tipping the balance of the Supreme Court was the reason why evangelical conservative voters, who had plenty of reason to worry about Trump’s character, decided to stick with him during the 2016 election campaign.
Recent developments underline the shrewdness of Trump’s campaign team, which published a list of potential court nominees with stellar conservative credentials before he faced off against Hillary Clinton.
“Remember, the President ran on the Supreme Court issue and that greatly enthused voters,” Leonard Leo, who is currently on leave from the Federalist Society, where he helped craft Trump’s list of candidates, said on ABC’s “This Week” Sunday.
By installing Gorsuch and another, similar candidate on the court, Trump can tell conservative voters that he kept his promises and give them a reason to solidify his electoral coalition.
In a wider sense, his nominee will also represent a triumph for conservatism and the organized effort to promote vetted conservative judges that offered McConnell a pipeline of candidates for lower courts and now is reaching the ultimate prize — a solid Supreme Court majority.
It also underlines that the decision by McConnell to refuse to confirm President Barack Obama’s pick for the court, Judge Merrick Garland, before the 2016 election, that could have led to a liberal majority, as one of the most far-reaching gambits in recent political history.