Here’s Who Trump Might Nominate to Replace RBG on the Supreme Court



Here’s Who Trump Might Nominate to Replace RBG on the Supreme Court

by Sarah Jones, nymag.com

September 18, 2020 09:14 PM

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The passing of Supreme Court Ruth Bader Ginsburg on Friday evening gives Donald Trump a prime opportunity. With weeks to go before November’s election, he can now mobilize his base on behalf of a new potential Supreme Court justice. The president has put forward a number of names over the years, with the most recent shortlist arriving earlier this month. Trump’s potential nominees tend to have several qualities in common: many have links to the Federalist Society and hold socially-conservative views on issues like abortion and even access to contraception.

If Trump manages to confirm a new justice this year, his victory would have significant implications for reproductive rights, voting rights, and immigration. With Ginsburg gone, conservatives on the Court could overturn key reproductive rights rulings, or reinterpret those rulings in a way that severely restricts access to abortion or contraception. The validity of the November election may also be at stake, with a Trump loyalist poised to weigh in on any potential challenges to the result.

Below are a few of the names that have appeared on Trump’s shortlist over the years. This isn’t an exhaustive list of potential nominees, but it does offer some introductory insight into the political fight that waits ahead.

Barrett may be Trump’s likeliest pick to replace Ginsburg. A federal appeals court judge, Barrett has appeared on Trump’s short list in the past. She is a conservative Catholic who has said that she believes that life begins at conception and has suggested that Roe v. Wade was wrongly decided. Barrett, the Washington Post reported, “said the framework of Roe had ‘essentially permitted abortion on demand’ and ‘recognizes no state interest in the life of a fetus,’ according to news accounts including an article in Notre Dame Magazine in 2013.” Though she’s Catholic, her nomination would appeal to Trump’s evangelical base: giving her Ginsburg’s seat would be the ultimate thumb-in-the-eye to the women’s movement championed by the late justice.

Paul Clement

Clement, a former U.S. solicitor general, appeared on Trump’s most recent list of potential nominees. His legal record is marked by his commitment to an expansive definition of religious liberty. He defended the Little Sisters of the Poor in their successful lawsuit against the Affordable Care Act’s contraception mandate, and represented a coalition of Republican-controlled states in a challenge to the same provision of the ACA. As with Barrett, Clement’s nomination would mollify evangelicals and signal real danger for major reproductive rights rulings.

Tom Cotton

The Republican senator from Arkansas is a more recent addition to Trump’s short list. The president named Cotton in September (and his fellow Senator Josh Hawley of Missouri) as a potential replacement for an outgoing justice. Cotton is as socially-conservative as Clement and Barrett, but he’s also recently inveighed against statehood for Washington D.C., and wrote a controversial New York Times op-ed this summer supporting the use of the military to suppress protests over police brutality. He also supports strict restrictions on legal immigration.

Noel Francisco

Francisco served as Trump’s solicitor general until earlier this year, when he departed the Department of Justice for the private sector. In a 2017 filing, Francisco told the Supreme Court that it should vacate a lower court ruling which found that a teenage migrant had a right to an abortion. Francisco also urged the Court to consider disciplining the girl’s ACLU attorneys for allegedly misrepresenting the facts of her case, the Washington Post reported. Francisco also defended the state of Ohio’s purge of thousands of inactive voters in arguments before the Supreme Court.

Sarah Pitlyk

Nominated by Trump to the federal judiciary in 2019, Pitlyk once clerked for Justice Brett Kavanaugh and opposes access to surrogacy and certain fertility treatments in addition to abortion rights. The American Bar Association rated her “Not Qualified” for her position due to a lack of trial experience, but that didn’t prevent Senate Republicans from confirming her to a district court slot, and it probably wouldn’t prevent them from putting her on the Supreme Court, either. Like Barrett, Pitlyk’s status as a conservative Catholic woman could give her nomination a certain “own-the-libs” oomph as far as Trump is concerned.