Over the last several years, conservatives have suffered high-profile losses on a lot of controversial issues, from same-sex marriage to affirmative action to abortion rights. So when Justice Antonin Scalia died in February, the Supreme Court got even more political. Senate Majority Leader Mitch McConnell’s move to prevent any Obama nominee from even getting a hearing turned out to be a powerful motivator in electing Donald Trump, who won’t only get to replace Scalia but could, in theory, replace as many as two to four more justices as the average age of the Court gets even higher.
Trump took advantage of the SCOTUS opening more than Clinton did. While Clinton prefers more measured, hand-to-the-chest strategies for pretty much everything, Trump unveiled two lists of 21 possible nominee choices. The nominees keep in line with his whole anti-establishment shtick (almost no one from Harvard or Yale Law, unlike all the current Justices, for example). But all are pretty predictably hard-righters, and several clerked for sitting conservative Justices.
Trump has explicitly said that he wants to overturn Roe v. Wade, and even though he’s claiming to support LGBTQ rights, he’s criticized the Court’s decision on same-sex marriage. There’s a long list of things to be worried about on top of those two issues: Trump has often lied about voter fraud to argue for stricter voting laws, vowed to implement New York’s disastrous “stop and frisk” policy nationwide, and complained about a terror suspect getting a lawyer (guaranteed by the Sixth Amendment). Religious tests, stripped press protections, war crimes—the list goes on.
It’s unlikely that any Trump appointee would side with him on these issues, and Justices don’t always act the way the presidents who appoint them think they will. There’s also every chance he’ll just pick someone not on these lists at all. But with these concerns in mind, Complex took a look at some of the more notable and worrisome names on Trump’s lists, and the potential fallout they could have on the Court.
Canady may be the biggest eyebrow raiser on this list. His most dubious honor is popularizing the phrase “partial-birth abortion,” which is a political term instead of a medical one. Currently a Justice on the Supreme Court of Florida, Canady served in the House of Representatives from 1993 to 2001, which means we have more than just his judicial record to examine. While in Congress he authored a bill severely limiting abortion access that was later vetoed by then-President Clinton, and he was very vocal about his support for the Defense of Marriage Act. He was the only dissenter when Florida revised its capital punishment sentencing and required a unanimous jury for a death sentence, the result of a SCOFL death penalty that even Justices Scalia and Thomas thought was too extreme.
Judge Raymond Gruender has been on the Eighth Circuit since being appointed by Bush in 2003. Since then he’s proven firmly anti-abortion. In 2007, Gruender authored an opinion that women employees don’t have a right to contraception coverage through health insurance, and his opinion has been cited often in arguments over the Affordable Care Act. And in 2008, he argued that laws requiring doctors tell women seeking abortions that they would “terminate the life of a whole, separate, unique, living human being” was constitutional and placed no burden on the women.
Hardiman had worked as both an appellate and trial lawyer before George W. Bush appointed him to a district court in 2003 and then to the Third Circuit Court of Appeals in 2007. He’s ruled that a jail’s policy of strip-searching prisoners was constitutional and dissented against a ruling that prison officials could be sued for not providing adequate suicide prevention measures. Most notably, though, in 2010 he essentially ruled that citizens do not have the right to videotape a cop during a traffic stop. (Not to get too in the weeds, but this depends on the individual state’s wiretapping laws.) As a result, those recordings can’t be used as evidence in cases of police misconduct.
Raymond Kethledge is relatively popular in conservative media. Appointed to the Sixth Circuit Court by Bush in 2008, he came down hard on the IRS in a decision regarding the agency’s apparent bias against Tea Party groups. He won “Opinion of the Year” from the Wall Street Journal’s editorial page with his “hilariously caustic rebuke” of the Equal Employment Opportunity Commission. But his record should raise concern for Court-watchers who are concerned about voting rights. Just before the 2008 election, Kethledge joined a Sixth Circuit ruling that would have kept 200,000 registered voters from having their votes counted: the Supreme Court unanimously overturned that decision just three days later.
In 2011, 11th Circuit Court Judge William Pryor was part of a three-judge panel that ruled that transgender discrimination is sex discrimination. But this goes against his record on LGBTQ rights. In the landmark 2003 Lawrence v. Texas case, where the Supreme Court ruled that sodomy bans were unconstitutional, Pryor wrote a friend of the court brief asserting that, no, it’s fine to jail people for consensual sex. In 2004, after he became a federal judge through a recess appointment by President Bush, he voted to refuse to hear a challenge to Florida’s ban on same-sex adoption. He’s also described Roe v. Wade as “the worst abomination in the history of constitutional law.”