Liberals’ worst nightmare: a second supreme court pick for Trump | Law | The Guardian

Any vacancy on the court prior to 2020 would almost certainly be filled by Donald Trump. Photograph: J Scott Applewhite/AP

A future conservative nominee could affect issues ranging from women’s reproductive health to LGBT rights

When, just weeks after taking office, Donald Trump nominated Neil Gorsuch to the supreme court, the newly minted US president made good on a central promise of his campaign: to replace the late justice Antonin Scalia with a bona fide conservative.

That moment foreshadowed what is shaping up to be among the most indelible of Trump’s triumphs – the reshaping of the federal judiciary with the appointment of dozens of judges with an ideological bent toward the administration’s agenda.

Republicans are working with Trump to make a record-breaking number of appointments to federal courts. These new, mostly young, white men will be in a position to rule on legislation that could change America for years.

But the most contentious appointment would be a second nomination to the highest court in the land. The supreme court has over decades delivered landmark decisions on issues from abortion to affirmative action and same-sex marriage. The potential for Trump to install another justice on the nine-seat bench, some legal experts argue, could have profound consequences on issues ranging from women’s reproductive health to LGBT rights.

With speculation mounting over the possible retirement of supreme court justice Anthony Kennedy, Trump could have a lasting impact on reshaping America’s most important court.

“If President Trump fills another vacancy on the court it will have an enormous effect,” said Erwin Chemerinsky, the dean of Berkeley School of Law at the University of California.

“It will create the most conservative court since the mid-1930s,” he added. “It would mean a majority to overrule Roe v Wade and to allow states to prohibit abortions, to eliminate all forms of affirmative action, to eliminate constitutional limits on illegal police conduct.”

The president himself underscored the power of future vacancies earlier this year, when he tweeted that Republicans “must ALWAYS hold the Supreme Court!”.

Ruth Bader Ginsburg, the oldest sitting judge at age 85, was appointed by Bill Clinton in 1993. Photograph: J. Scott Applewhite/AP

While it is not unusual for presidents to appoint supreme court justices with similar ideological leanings, Trump’s comments all but reinforced that he is unlikely to nominate a consensus pick if provided the opportunity. In November, the president updated his shortlist of candidates for a hypothetical vacancy, adding to a roster of proven judicial conservatives.

While the likelihood of a pending vacancy is far from confirmed, judicial watchers have set their sights on Justice Ruth Bader Ginsburg, a progressive icon who turned 85 this year, and Kennedy, a critical swing vote who has been the subject of retirement rumors for the second straight year.

Any vacancy prior to 2020 would almost certainly be filled by Trump, and a rules change adopted by Republicans during the Gorsuch nomination fight enabled the Senate to confirm supreme court justices with a simple majority vote.

Under the current balance of the court, Kennedy and the chief justice, John Roberts, though conservative appointees, have at times sided with the bench’s liberal justices.

Kennedy was the architect of several major decisions on LGBT rights, most notably the supreme court’s milestone ruling in 2015 establishing same-sex marriage as the law of the land. He is being closely watched as the likely deciding vote on the court’s highly anticipated decision regarding a case of a baker in the state of Colorado who refused to provide a wedding cake for a same-sex couple.

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