WASHINGTON – What would it take for President Donald Trump to get yet another Supreme Court pick? Probably the death of a justice.
Trump has speculated that he could appoint a majority of the nine-member court. But it has been three decades since a president has been able to name more than two justices to their life-tenured posts, and Trump tied that number this week. The court’s oldest remaining justices, two liberals and a conservative who are 85, 79 and 70, haven’t suggested they’re going anywhere and appear in fine health.
That hasn’t stopped Trump and others from predicting more openings.
“This could be the presidency with the most Supreme Court picks of any presidency in history,” Trump said during an appearance in Virginia more than a year before becoming president. “You’ll probably have three. You could have four and you could even have five.”
Five would still be a far cry from George Washington, who named the entire first Supreme Court and ultimately made 11 appointments. Franklin Roosevelt, with his unparalleled four terms as president, made nine.
With Senate Republicans holding open the seat of the late Justice Antonin Scalia until after the presidential election, Trump was assured his first pick even before he took office. Senators quickly confirmed his nominee, Neil Gorsuch. With the Senate still under Republican control, 51-49, it would seem Trump’s second choice, Brett Kavanaugh, is on his way to replacing retiring Justice Anthony Kennedy.
The last president to fill more than two Supreme Court vacancies was Ronald Reagan, who filled three. Reagan chose Scalia, Kennedy and Sandra Day O’Connor, the first woman on the court. He also elevated William Rehnquist from an associate justice to chief.
Ever since, circumstances have meant that presidents have been able to fill just two openings each. George H.W. Bush put David Souter and Clarence Thomas on the court in his one term in office.
Serving two terms didn’t help his successors get more picks. Bill Clinton chose Ruth Bader Ginsburg and Stephen Breyer. George W. Bush selected the court’s current chief justice, John Roberts, and Samuel Alito. Barack Obama named Sonia Sotomayor and Elena Kagan. Clinton and Obama, like Trump, found themselves with open seats in their first year and a half in office but never got to fill another opening.
While Scalia’s unexpected death in 2016 gave Obama a chance to nominate a third person to the court, Senate Republicans refused to give the Democrat’s nominee, Merrick Garland, a hearing. Trump could run into the same problem if Democrats re-take control of the Senate in November.
“In the wake of what happened with Merrick Garland, Democrats would feel justified in refusing to seat another Trump appointee. That would certainly be on the table,” said Frances Lee, a professor of government and politics at the University of Maryland who studies Congress.
Recent justices have tended to retire under a president of the party that nominated them. The next oldest Republican-appointed justice on the court is Thomas, who at 70 could serve for another decade or more. Kennedy announced his retirement at 81. The last justice to retire before him, John Paul Stevens, left the court at 90.
The court’s liberal justices wouldn’t seem to be going anywhere during a Trump presidency if they can help it. Ginsburg, who at 85 is the court’s oldest member, has already hired law clerks through June 2020, just four months before the next presidential election. Breyer, who turns 80 in August, was asked last week during an appearance in Colorado if he was contemplating retirement. His answer: “No.”
On Monday, however, Republican Sen. Orrin Hatch of Utah was already talking as though a third Trump nominee is assured. Speaking to reporters, Hatch said he assumed that one of the finalists for the position this time around, appeals court Judge Amy Coney Barrett, would be chosen “next time.”
Hatch didn’t theorize when that might be, but Trump noted on the campaign trail that Scalia’s death was “a surprise.”
“People kept talking about different names,” Trump said of speculation about who might be next to leave the court. “But they didn’t think him and all of a sudden he’s gone. That was shocking to people, so you never know what’s going to happen.”
Associated Press writer Lisa Mascaro contributed to this report.
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