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Speculation Swirls Around Two Names For Supreme Court Slot

Jan 31, 2017
Originally published on January 31, 2017 9:45 pm
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AUDIE CORNISH, HOST:

Tonight, President Trump will announce his pick for the Supreme Court. Speculation has centered on two federal appeals court judges, Neil Gorsuch of the 10th Circuit based in Denver and Tom Hardiman of the 3rd Circuit based in Pennsylvania. Joining us now is NPR legal affairs correspondent Nina Totenberg. Hey there, Nina.

NINA TOTENBERG, BYLINE: Hi.

CORNISH: So as I said in the intro - speculation (laughter). What do we know so far?

TOTENBERG: Well, various media organizations are quoting unnamed sources as saying it's Judge Gorsuch from Denver. But this is the Trump White House, so with lots of caveats and apologies to Judge Hardiman, I'm going to talk about Judge Gorsuch, who it seems to me for weeks has had the inside track.

And there were lots of - there are lots of reasons for picking him. He's young. He's 49. He's known for his conservative and cerebral approach to legal interpretation. He's known as a really fine writer, often compared to Justice Scalia, the man that he would replace, in writing ability but without that sharp tone. And he's relatively uncontroversial, with the stress on relatively.

He'll face a lot of questions about opinions he's written on religious rights that would seem to suggest, for instance, that he would uphold the rights of employers who do not want to accommodate gays and lesbians, although that decision was in a contraceptive - in a birth control case where the Hobby Lobby employer didn't want to provide certain kinds of contraception. But he's less controversial than others who - like Judge William Pryor of the 11th Circuit, who would have been far more controversial.

CORNISH: Now, while we wait for the announcement, just help set the stage for the upcoming debate over this which we know is going to be pretty contentious, right?

TOTENBERG: Yes, it's going to be contentious. The Republicans are already signaling how they intend to get this done, though. Here's Sean Spicer, the White House spokesman, talking about what President Trump is pushing as the criteria for the confirmation.

(SOUNDBITE OF PRESS CONFERENCE)

SEAN SPICER: The default is that if you're qualified for the position, then you should be confirmed, not the other way around. And I think that most Democrats realize that at some point, that is a - that having a court that is not fully operational is not the way that - is not the political fight to have.

TOTENBERG: Now, you may notice that for almost a year, a shorthanded Supreme Court didn't bother Republicans who refused to even give a hearing for Obama nominee Merrick Garland, whose qualifications nobody in the land of the sane disputed. Indeed Garland was always the Democratic nominee that Republicans had hoped for.

CORNISH: So do you think Democrats will dispute qualifications for this prospect?

TOTENBERG: No, but they're being pushed very hard by their base to register their objections. They see the Republicans as having basically stolen this seat by a precedent-shattering year-long blockade that they don't want to reward. And they want to register their outrage in some way, any way at President Trump's actions in the first 12 days of his presidency.

And it's - you know, this is a lifetime appointment, and it's very important. So there's a lot of talk about filibustering the nominee. And if they do that, it would take 60 votes to break the filibuster and get a vote on the nomination.

CORNISH: And have we heard from Mitch McConnell, leader of the Senate Republicans, about that?

TOTENBERG: Well, we know that Mitch McConnell is a brilliant strategist and arm-twister, and he's already said that Democrats will oppose anybody and paint that individual as an extremist. And I just want to say, nobody has clean hands in this debate. Both sides flip what they say about Supreme Court nominees whenever there - if it - depending on who's in the White House.

CORNISH: That's NPR's Nina Totenberg. Thanks so much.

TOTENBERG: Thank you, Audie. Transcript provided by NPR, Copyright NPR.