Supreme Court vacancy: Prepare for a game-changer, experts say

Supreme Court vacancy: Prepare for a game-changer, experts say

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In this partisan-as-ever country we call home, there's one thing even the far, far left and far, far right agree on.

The conservative judge President Donald Trump tabs to replace the retiring Anthony Kennedy in the ninth seat on the Supreme Court (announcement Monday at 8 p.m. on WDWS) will be a game-changer, more so than any appointee in at least three decades, if not longer.

But that's where the consensus ends, The News-Gazette found in surveying 32 top law deans, scholars, attorneys, government officials and court watchers on the eve of the president making public his pick, who experts on both sides predict will have a relatively smooth path to confirmation by the GOP-controlled Senate.

"It would take some truly fantastical scenario — of the order of a nuclear attack on Washington or invasion by space aliens — to slow this train down," says University of Illinois law Professor Jason Mazzone. "In the past, there was a risk that the nominee would self-detonate during the confirmation process — remember that Anthony Kennedy was President Reagan's third pick — but nominees today are far too prepared and savvy to do that.

"We'll have nine justices when the Court convenes in October."

What will be the long-term impact of Trump's second lifetime appointee in 524 days, whomever she or he is. Here's what our panelists had to say.


Jeffrey Toobin, author of 2007 best-seller "The Nine," has predicted that 18 months from now, abortion will be illegal in 20 U.S. states. Could you see that happening as a result of Justice Anthony Kennedy's retirement?

— Vanderbilt law Professor SUZANNA SHERRY says: "Absolutely. It's already very difficult in about that many states."

— Columbia law Professor SUZANNE GOLDBERG says: "There is a group of states that has tried relentlessly, for many years, to cut back on women's access to safe abortion. Whether they actually take the step to criminalize abortion — with the devastating public health consequences that would create — remains to be seen. But they will surely continue efforts to shut down access at every turn."

— ProPublica founding GM DICK TOFEL says: "The latest Gallup poll shows only 18 percent in favor of banning abortion. I would be very surprised if Chief Justice (John) Roberts wanted to set the Court so sharply against that societal consensus on a matter so critical to so many people. The Wall Street Journal editorial page recently cited a close friend of the late Justice (Antonin) Scalia saying that even Scalia, by the end of his life, had concluded that Roe should not be overruled."

— NBC News justice correspondent PETE WILLIAMS says: "Groups that track abortion laws in the states say if Roe were overturned, abortion could become illegal in 22 states, either because they have the necessary laws already in place or because they're likely to pass similar legislation. But of the current conservatives on the court, only Clarence Thomas is on record opposing Roe. Even assuming the others — Samuel Alito, Neil Gorsuch and the new Trump nominee — also voted to strike it down, that's only four. It's not at all clear that Chief Justice John Roberts would vote to overturn a 45-year-old precedent. The court is more likely to uphold the growing number of state laws that limit access to abortion service."

— Cal Berkeley law Dean ERWIN CHEMERINSKY says: "Absolutely. The only question is when."

— National Review Editor RICH LOWRY says: "It won't happen that quickly, but a case challenging Roe will inevitably arise. It's impossible to know how the justices, especially Roberts, will decide under the enormous political and social pressure that will be brought to bear, but there is some significant chance that Roe will be overturned and this issue will finally be fully returned to the political realm."

— University of Colorado Professor ROBERT NAGEL says: "I think Toobin's prediction displays either political calculation or a failure to consider the modern history of the Court and the wider influences and inclinations that shape its behavior. It is highly unlikely that replacing Justice Kennedy will result in an over-ruling of Roe. None of the highly controversial 'landmark' decisions of the Warren Court — not Brown, not Miranda, not Baker v. Carr — have been overruled despite the fact that Republican appointees have had a numerical majority on the Court for almost all of the past four-and-a-half decades.

"There are many reasons for this, but the main reason is that conservative jurists tend to equate the Court's political standing — its prestige and legitimacy — with the rule of law itself. To put it bluntly, they tend to care more about protecting the Court as an institution than about enforcing the Constitution itself. Anyone who doubts this should look at the overall records of the Burger, Rehnquist and Roberts courts or just re-read the Casey decision, where three Republican appointees authored a hysterically frightened opinion about the need to protect the Court's prestige — even if that means condemning as deeply illegitimate political pressures to overrule Roe v. Wade."


Would it be surprising if the next nominee gave his/her opinion on Roe v. Wade during Senate confirmation hearings?

— Famed women's rights attorney GLORIA ALLRED says: "It would be shocking."

— MARTHA C. NUSSBAUM, the Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago, says: "Yes. They can easily avoid this — for example, by saying neutrally that it is 'settled law' — and nothing but trouble for them would come of saying more."

— Sherry says: "The nominee is highly unlikely to give his or her opinion on Roe v. Wade, and will instead hide behind the claim that the question may come before the Court. Recent nominees have even refused to give an opinion on Brown v. Board of Education, an iconic case that nobody has ever suggested overruling — at least not in the last 50 years or so.

"And so, senators — like (Susan) Collins of Maine, I believe — who have said they will be reluctant to confirm anyone who wants to overrule Roe — will also be able to hide by claiming that they don't know the nominee's views on Roe. It's all a sham: the nominee will be carefully vetted on Roe, his or her views will be well-known but not announced at the confirmation hearings, and Roe will be overruled within a year."


So, it would it be naive to believe the president might not know where his appointee stands on Roe v. Wade before Monday?

— Civil rights attorney AREVA MARTIN says: "Incredibly. All of them potential Supreme Court justices on his short list of seven have been thoroughly vetted by the Federalist Society and Heritage Foundation. They made the short list because of their conservative views on a range of issues, including abortion.

"Also, Trump made it clear during his campaign that he would impose a litmus test for any individual that he would even remotely consider appointing to the Supreme Court. That test requires any potential candidate to be committed to abolishing the reproductive rights of millions of women and criminalizing abortions.

"It doesn't matter if the individual selected by Trump engages in the standard obfuscation that most candidates do when questioned during Senate confirmation hearings, their previous commitment to be the decisive vote on Roe v. Wade has already been cemented."


If Roe v. Wade is struck down, what happens in Illinois?

— UI law Dean VIKRAM AMAR says: "I don't expect Roe to be overturned because Chief Justice Roberts doesn't need to overturn it; the framework in place for the last few decades — a diluted version of Roe — already employs a very malleable 'undue burden' balancing test that a new Court majority can use to uphold laws in many red states that don't prohibit all abortions, but that make abortion very hard to obtain, especially for poorer and rural women. Illinois is unlikely to pass such restrictive laws, but women from neighboring states may come to Illinois for abortions."


Finish this sentence: Monday's will be the most significant Supreme Court appointee since ...

— ROBERTA RAMO, who in 1995 became the American Bar Association's first female president, says: "Chief Justice Earl Warren, a Republican appointed by President Eisenhower who worked mightily to reach a unanimous decision of the Court in Brown v. Board of Education. This began the process, uncompleted to this day, of making the promises of the Constitution and the Bill of Rights reality for African Americans. He led the way for years of a Court trusted to interpret the Constitution so that all citizens were treated equally under the law.

"The Roberts Court, with this appointment, could reverse the gains that women and minorities once thought were permanently enshrined in previous decisions of the U.S. Supreme Court. Or, individual justices can, as Earl Warren did, accept that the oath taken is to all Americans and the ideals of American justice in our magnificent Constitution — are not to the president who appoints them, or short-term politics or dogma. History and the American people will stand in judgment."

— UMass Professor DWIGHT DUNCAN says: "1803, when Chief Justice John Marshall recognized the power of the Supreme Court to judicially review the constitutionality of laws in Marbury v. Madison. The Supreme Court is now at the tipping point, and Justice Kennedy's replacement will cast the deciding vote."

— New York Times Supreme Court reporter ADAM LIPTAK says: "Justice Lewis Powell announced his retirement in 1987. He was the last swing justice to retire. After the Senate rejected President Reagan's first nominee, Robert Bork, as too conservative, the seat went to Justice Kennedy."

— University of Houston law Dean LEONARD BAYNES says: "President George W. Bush replaced Sandra Day O'Connor with Samuel Alito. At that time, Justice O'Connor was situated at the center of the court. She sided with the more progressive justices on affirmative action, LGBTQ rights and women's reproductive issues, and with the rest of the Court on other issues.

"Since O'Connor's retirement, Kennedy has served as the swing vote. President Trump's opportunity to replace him is most monumental because the center of the Court is likely to shift once again, probably making Chief Justice Roberts the center."

— Heritage Foundation VP JOHN MALCOLM says: "Although neither the current vacancy nor Alito's appointment were as big a shift as when Clarence Thomas replaced Thurgood Marshall, this appointment gives the president an opportunity to replace a quintessential swing vote with a reliable conservative."


With Kennedy out, who becomes the Court's new swing vote?

— Washington University law Dean NANCY STAUDT says: "It appears that Chief Justice John Roberts has moved into this position. In his new position as the median voter, along with the ability to assign opinions, the Chief's impact on the development of the law will truly be powerful and impactful."

— Former Harvard law Dean MARTHA MINO