STREAMING NOW: Watch Now

Trump's shortlist for Supreme Court pick

President Donald Trump interviewed four candidates for the next Supreme Court nominee to replace retiring Justice Anthony Kennedy.

Posted: Jul 3, 2018 10:09 PM
Updated: Jul 3, 2018 10:38 PM

Ever since the failed nomination of Robert Bork, whose rejection allowed an obscure federal court of appeals judge from Sacramento named Anthony Kennedy to become the 104th Justice of the US Supreme Court, presidential administrations have displayed extreme care and thoroughness in their vetting of candidates for the court.

A playbook has developed for use by both Democratic and Republican administrations. Many commentators believe that Presidents have adopted nuanced approaches for determining candidates' likely votes on hot-button issues. A 1985 article in Newsweek reported that the first thing judicial candidates, sitting down to talk with Reagan's chief judge picker, would say is "pleased to meet you." And the second: "Roe v. Wade ... was wrongly decided."

But even as they put in place increasingly sophisticated and dependable methods to ferret out a candidate's judicial philosophy and predict her likely voting pattern on the court, Presidents and advisers have been exceptionally careful to insist they don't impose particular "litmus tests" -- pledges to decide particular issues in specific ways.

Thus, as another of Reagan's judge pickers insisted, "We don't get into political questions, activities, associations or views. We don't test candidates by ideology or use a litmus test." Similar pledges have become compulsory for every administration.

It's not hard to see why. "Litmus test" questions, if discovered, can and should doom a candidacy. As Lincoln famously explained: "We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it." (Less well-known is the lesson Lincoln drew from that axiom: "Therefore, we must take a (person) whose opinions are known.")

It would be the ultimate dereliction of duty for a judge to decide a case based not on the facts and law, but because of a pledge to a political patron. Even if the pledge coincided with the judge's own view, it would be corrupt of the President to trade a judicial appointment for a promise of a particular vote -- as if the judge's fealty was to his patron and not the law -- and ignominious of the candidate to accept the deal.

There are compelling practical reasons as well why pledges of specific votes are a sort of third rail in judicial selection. If a candidate offered to the President his assurance of how she would vote on a matter likely to come before the court, she would have no defense against the same sorts of assurances to the Senate. She would lose the all-purpose shield of, "I'm sorry Senator, but I cannot answer that question because it is an issue that might come before me if I am fortunate enough to be confirmed."

Thus, every President, certainly since Reagan, has insisted he did not and would not ask litmus-test questions, and given the sophistication of the nomination process, there is every reason to think that those assurances were accurate.

When I worked on judicial nominations, including Supreme Court nominations, in the Clinton administration, it was axiomatic that any litmus test questions were strictly off limits.

Enter Donald Trump. Trump's judicial selection process actually has been efficient and professional, in marked contrast to the chaotic and noxious administration in almost all other policy areas. White House Counsel Don McGahn, who will oversee the nomination and attempted confirmation of the next justice, surely will impress upon him that he simply may not seek to exact a pledge of a particular vote of any sort from his nominee.

And with any other President, that would likely quiet any concerns. But in the first place, Trump is a comically uninhibited rule-breaker who boasts about making decisions by his gut. He is -- and I wish I were the first to put it this way but I'm not -- the glandular President.

More importantly, we already know Trump is wont to try to exact improper pledges of personal loyalty to him above loyalty to the law. That is exactly what James Comey said he did with him, and Comey immediately recognized the stunning impropriety of the encounter, which he understood sought to ensure the FBI director's allegiance to the President above the law. Trump appears unaware to this day of why the demand was unseemly.

Yet more importantly, Trump is under serious threat of impeachment or criminal liability. From his selfish interests, he wants more than anything a nominee who would protect him at the Supreme Court in the very foreseeable event that questions on which his Presidency and even liberty may turn -- such as: can a President pardon himself? -- come to the court.

No one who has followed the news closely these last 529 days can feel confident that Trump, if left alone with a nominee, would not seek to secure some sort of personal assurance, if only in wink-and-nod form, of votes on specific issues, especially ones that may determine his personal fate.

Yet it would be extraordinarily stupid, brazen, and corrupt, and could fatally compromise the candidate for the court -- reasons enough for every President in modern memory, and perhaps American history, to eschew it, save this one.

Given the high stakes of the nomination and the character of the President, expect the first round of questions in the Senate to Trump's nominee to be a series of exacting inquiries about exactly what the President told her and whether he approached or crossed the litmus-test line.

These are straightforward inquiries, and it would be dangerous, not to mention dishonorable, for a candidate to answer dishonestly. If in fact it were to emerge that Trump had sought some sort of pledge, it would likely upend the nomination and force the administration into a do-over that would extend the confirmation battle past the midterm elections.

It is very hard to imagine such an extreme self-inflicted wound, but if any President has what it takes to inflict it, it's Trump.

West Lafayette
Mostly Cloudy
56° wxIcon
Hi: 57° Lo: 54°
Feels Like: 56°
Kokomo
Cloudy
55° wxIcon
Hi: 55° Lo: 53°
Feels Like: 55°
Rensselaer
Cloudy
57° wxIcon
Hi: 60° Lo: 53°
Feels Like: 57°
Fowler
Partly Cloudy
56° wxIcon
Hi: 57° Lo: 53°
Feels Like: 56°
Williamsport
Partly Cloudy
55° wxIcon
Hi: 58° Lo: 54°
Feels Like: 55°
Crawfordsville
Mostly Cloudy
55° wxIcon
Hi: 56° Lo: 53°
Feels Like: 55°
Frankfort
Cloudy
55° wxIcon
Hi: 55° Lo: 53°
Feels Like: 55°
Delphi
Mostly Cloudy
56° wxIcon
Hi: 57° Lo: 54°
Feels Like: 56°
Monticello
Partly Cloudy
56° wxIcon
Hi: 60° Lo: 55°
Feels Like: 56°
Logansport
Mostly Cloudy
54° wxIcon
Hi: 55° Lo: 53°
Feels Like: 54°
Welcome rain will continue, followed by a nice end to the week..
WLFI Temps
WLFI Planner

Indiana Coronavirus Cases

Data is updated nightly.

Cases: 937221

Reported Deaths: 15239
CountyCasesDeaths
Marion1276111977
Lake631621093
Allen53394752
Hamilton43720447
St. Joseph41805587
Elkhart33451489
Vanderburgh30262444
Tippecanoe26779249
Johnson23524417
Hendricks22143341
Porter21620345
Clark17363227
Madison17280382
Vigo16046276
Monroe14422191
LaPorte14263239
Delaware14014220
Howard13802272
Kosciusko11345135
Hancock10785163
Warrick10641176
Bartholomew10510167
Floyd10398204
Wayne9897222
Grant9068204
Morgan8833159
Boone8368110
Dubois7696123
Dearborn758489
Henry7563130
Noble7380101
Marshall7326128
Cass7160117
Lawrence6940153
Shelby6543110
Jackson653185
Gibson6124106
Harrison602885
Huntington597394
Montgomery5767105
DeKalb570791
Knox5417104
Miami539087
Putnam534067
Clinton532465
Whitley522652
Steuben495068
Wabash481592
Jasper477361
Jefferson466991
Ripley451975
Adams442566
Daviess4120108
Scott403964
White389457
Clay388456
Greene386890
Decatur383996
Wells383083
Fayette373178
Posey359041
Jennings351356
Washington330647
LaGrange319575
Spencer316635
Fountain313654
Randolph310688
Sullivan304847
Owen282761
Starke278562
Orange275059
Fulton274653
Jay253536
Perry250852
Carroll243128
Franklin237038
Vermillion231950
Rush231730
Parke218320
Tipton208955
Pike205639
Blackford167934
Pulaski162251
Crawford145418
Newton142745
Benton141916
Brown134646
Martin128016
Switzerland125210
Warren114216
Union95811
Ohio78511
Unassigned0474

COVID-19 Important links and resources

As the spread of COVID-19, or as it's more commonly known as the coronavirus continues, this page will serve as your one-stop for the resources you need to stay informed and to keep you and your family safe. CLICK HERE

Closings related to the prevention of the COVID-19 can be found on our Closings page.

Community Events