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If Republicans Get Their Wish On The Supreme Court, What Would Trump Or Cruz Do?

By Miranda Blue, Elliot Mincberg and Brian Tashman

Republicans in the Senate, pushed by outside conservative interest groups(link is external), are promising to block President Obama’s Supreme Court nominee, Merrick Garland, and arguing that the next president should fill the current vacancy, in the hope that a Republican president will name a conservative ideologue to the bench.

Even if the Senate does confirm Garland, the next president will likely be charged with nominating at least one person to the Supreme Court, and possibly more. Since it looks like either Donald Trump or Ted Cruz will win the Republican presidential nomination, looking at both men’s past statements gives us an idea of the kind of justices that Republicans are hoping for.

Trump and Cruz have both signaled that they would appease their base by nominating justices who would shift the court far to the right. Cruz has lamented that some justices nominated by Republican presidents have strayed from the party line on issues like abortion rights and has vowed (link is external) that he would appoint “rock-ribbed conservatives” who have a “long paper trail” to demonstrate their “conservative” bona fides.

Trump, dogged by worries among movement conservatives that he would betray them when it comes to Supreme Court nominations, has promised to pick any Supreme Court nominees off a list he develops in partnership with the conservative Heritage Foundation (link is external) and the Federalist Society(link is external).

Both candidates have indicated that they would nominate judges who would vote to overturn Roe v. Wade and Obergefell v. Hodges, the landmark abortion rights and marriage equality decisions. Trump, although he appears not to understand(link is external) the central legal issue of Roe, has said that the decision “can be changed(link is external)” through the right judicial nominations since “you know, things are put there and are passed but they can be unpassed with time.” Cruz has warned that unless a true conservative like him picks the next justice, the Supreme Court will soon be “mandating unlimited abortion(link is external).” Trump has said that Obergefell was wrongly decided(link is external), while Cruz has called the decision “fundamentally illegitimate(link is external)” and said it can be ignored by the president.

Cruz has made the future of the court a centerpiece of his campaign, while Trump may not actually understand how the Supreme Court works(link is external). But both have made clear that as president they would work to shift the court even farther to the right on the issues important to social conservatives and to the corporate Right.

What would a court shaped by a President Trump or a President Cruz look like? Looking at a few of the possible judicial nominees whose names have been dropped by candidates or who have been recommended by the Heritage Foundation(link is external), we can get an idea of the kind of ideological conservatives whom Republicans are hoping to put on the bench.

William H. Pryor

One possible Supreme Court nominee whom Trump has specifically praised is William H. Pryor, selected by President George W. Bush to be on the U.S. Court of Appeals for the 11th Circuit. Formerly Alabama’s attorney general, Pryor has a history of extreme right-wing activism, severely criticizing not just women’s right to choose under Roe v. Wade but even the constitutionality of the New Deal.

Pryor has called Roe the “worst abomination in the history of constitutional law(link is external).” He has claimed (link is external) that with the New Deal and other measures, the U.S. has “strayed too far in the expansion of the federal government,” and asserted that it “should not be in the business of public education nor the control of street crime.” As a judge, he has helped uphold a restrictive Georgia voter ID law(link is external) and joined just one other judge on the 11th Circuit in claiming that “racially disparate effects” should not be enough(link is external) to prove a violation of Section 2 of the Voting Rights Act, even though the Supreme Court has ruled precisely the opposite.

Pryor came first on a wish list(link is external) of Supreme Court picks that the Heritage Foundation published shortly after Trump promised to consult them before naming justices.

Diane Sykes

Trump has also repeatedly named Diane Sykes, a Seventh Circuit federal appeals court judge appointed by President George W. Bush, as a potential Supreme Court nominee. Sykes, who previously served on the Wisconsin Supreme Court and a trial court, has also won high praise from the Heritage Foundation(link is external) and from right-wing Wisconsin Gov. Scott Walker. (link is external)

In a series of dissents, Sykes has argued in favor of big business and against consumers and discrimination victims, including cases where she Ctrl+Click or tap to follow the link"> tried to limit corporate liability for product defects and overturn a $1 million damages award(link is external), to protect a corporation from having to defend against an employee’s claim of discrimination under the Americans with Disabilities Act, and to reverse a $3.5 million bad faith judgment in favor of a Lutheran church against its insurance company(link is external).

She showed her anti-reproductive-choice views in providing a lenient sentence to two anti-abortion protesters who had to be forcibly removed from blocking the entrance to a Milwaukee abortion clinic and had previously been arrested 100 times for such offenses; Sykes nevertheless praised them(link is external) for their “fine character” and expressed “respect” for the “ultimate goals” the blockade “sought to achieve.”

She asserted in dissent(link is external) that a jury verdict against a criminal defendant should have been upheld even though there was extensive evidence that one of the jurors did not understand English (including a statement from the juror himself), which disqualified him from serving on a jury under Wisconsin law; that a prosecutor should be immune(link is external) from a claim that he fabricated false evidence that wrongly convicted a man for 17 years; and that a conviction under federal law against someone convicted of domestic violence for possessing firearms should be reversed and that the law itself could well be unconstitutional(link is external), in disagreement with all 10 other judges on the court of appeals. She voted in favor of a Wisconsin voter ID law (link is external) and of a claim by a student group that it should receive state funding and recognition despite its violation of a university rule prohibiting against discrimination based on sexual orientation(link is external), an issue on which the Supreme Court reached exactly the opposite conclusion several years later.

Steven Colloton

The third name on Heritage’s list(link is external) of possible Supreme Court nominees is Judge Steven Colloton, who was appointed by President George W. Bush to the Eighth Circuit Court of Appeals, after previous service for Independent Counsel Kenneth Starr and as a U.S. attorney.

Colloton has been at the forefront of a number of troubling Eighth Circuit rulings, including writing decisions that reversed an $8.1 million award(link is external) to whistleblowers who helped bring a defective pricing and kickback claim against a large corporation and a nearly $19 million class action judgment(link is external) against Tyson Foods for violating the federal Fair Labor Standards Act. He also joined a ruling(link is external) making the Eighth Circuit the only appellate court in the country that found that the Obama administration’s efforts to accommodate religious universities and other religious nonprofit objectors to the provision of contraceptive coverage under the ACA was insufficient, an issue now being considered by the Supreme Court(link is external).

Even more troubling, Colloton has dissented from a number of Eighth Circuit rulings that have upheld the rights of employees, consumers and others against big business and government agencies. He dissented from a decision giving African-American shoppers the opportunity to prove discrimination claims against a large department store, and then saw his view prevail(link is external) by one vote when the full Eighth Circuit reheard the case. In another case, he dissented from a decision finding that a city had violated the Voting Rights Act(link is external) by improperly diluting the voting strength of Native Americans.

Colloton dissented from rulings that gave individuals a chance to prove claims of use of excessive force(link is external) and, in one case, that a city’s policy to use police dogs to bite and hold suspects (link is external) without any warning was unconstitutional. In three(link is external) separate(link is external) cases(link is external), he dissented from decisions that employees should at least get the chance to prove in court that their employers retaliated against them for filing sex harassment, age discrimination, or other discrimination claims. In two more decisions, he argued(link is external) in dissent(link is external) that public employees should not have the opportunity to prove that they were retaliated against for speaking out in violation of their First Amendment rights. Yet he also claimed(link is external) in a dissent that the First Amendment rights of a candidate for state supreme court justice were violated by a state judicial code of conduct restricting solicitation and other campaign activity in order to promote judicial impartiality and ethical conduct by judges. Even the conservative Roberts Court that decided the Citizens United case has agreed that these concerns justify solicitation restrictions in state supreme court elections(link is external).

Mike Lee

Sen. Mike Lee of Utah is Cruz’s closest ally in the Senate and Cruz has said that Lee “would look good(link is external)” on the Supreme Court. Lee also made the Heritage Foundation’s shortlist (link is external) of potential Supreme Court justices.

Lee is a fervent “tenther,”(link is external) someone who believes the 10th Amendment to the Constitution radically restricts the authority of the federal government. As Jeffrey Rosen wrote(link is external) in the New York Times Magazine in 2010, “Lee offered glimpses of a truly radical vision of the U.S. Constitution, one that sees the document as divinely inspired and views much of what the federal government currently does as unconstitutional.” Among the areas that Lee has suggested it is unconstitutional for the federal government to be engaged in(link is external):

  • Social Security,
  • Medicare and Medicaid,
  • child labor laws,
  • food safety,
  • disaster relief,
  • food stamps,
  • the Violence Against Women Act,
  • and, of course, the Affordable Care Act.

Lee has criticized the Supreme Court’s rulings on abortion rights and marriage equality, calling Roe v. Wade an “unconscionable decision(link is external)” that “defied the spirit and the letter” of the Constitution and responding to Obergefell by introducing a measure that would protect anti-LGBT discrimination(link is external).

Ted Cruz

While we don’t expect Cruz to name himself to the Supreme Court, as recently as December Trump was receptive to the idea of extending an olive branch to his (link is external) main Republican presidential rival in the form of a Supreme Court nomination.

A Justice Cruz would certainly align with Trump’s stated priorities of reversing the Obergefell marriage equality decision and making sure Roe v. Wade is “unpassed.” (link is external) Cruz, who served as the solicitor general of Texas before his election to the U.S. Senate, has gone so far as to call for the U.S. government to defy(link is external) Obergefell and to claim that Congress could ban abortion without overturning Roe(link is external). Before running for the Senate, Cruz proposed an unconstitutional plan to nullify the Affordable Care Act(link is external); last year, he said(link is external) that a Supreme Court ruling rejecting a clearly meritless challenge to the ACA was the “lawless” work of “rogue justices.” Cruz is known for having politicized the Texas solicitor general’s office(link is external), filing dozens of Supreme Court amicus briefs defending conservative positions on hot-button issues such as gun rights and abortion. On the campaign trail, he frequently boasts(link is external) of his work as an attorney fighting church-state separation.

If Cruz were to become a Supreme Court justice, however, we wonder if he would stick with his idea of subjecting justices to retention elections.(link is external)

This post has been updated to clarify the circumstances of a case in which Sykes asserted in a dissent that a jury verdict should have been upheld despite evidence that one juror was disqualified from serving.