President-elect Donald Trump has made no utterance since his election about who he will tap to fill the Antonin Scalia vacancy on the High Court. However, this hasn't stopped others from endlessly speculating about just who that might be. Names have been tossed out all over the place. The consensus being that it could be a moderate conservative who would have the best chance of getting confirmed with a minimum of rancor. That's certainly a possibility. But it's not likely.
Trump has already tipped his hand once when he said his ideal justices are Clarence Thomas and Scalia. He lionized Scalia during his acceptance speech at the Republican National Convention and again in a presidential debate with Hillary Clinton.
The other tip is the list of nearly a dozen names of his potential court picks he got with lots of help from the ultra-conservative Heritage Foundation that he made public last May. He added a few more names in September that include a woman, a Hispanic, Asian, and an African-American judge. But this is mostly for cosmetic and image massaging purposes. Those on the original list were almost all white males, and hard line opponents of abortion, same-sex marriage, voting rights expansion, and increased federal regulations. The names that he added as a sop to diversity are cut from the same cloth as those on his first list.
Trump's pick will be another judge exactly as he said in the mold of Scalia and Thomas. Said Trump," This list is definitive and I will choose only from it in picking future justices of the United States Supreme Court." This is just the start. Trump almost certainly will have the chance to pick one maybe two more justices during his term replacing the two aging liberal and a moderate judges on the court. They also will not just be garden variety strict constructionists, but activists and influencers on the bench. They will be judges who won't just base their rulings on the standard conservative playbook, but will cajole, hector and badger other judges to toe the hard-conservative line in their rulings. And who will have the gall when it suits their purpose not even to try and hide it. GOP Vice Presidential contender Mike Pence made the Trump-Scalia axis official when he vowed to a campaign crowd in Michigan during the campaign that Trump's High Court pick would hit the bench with the practically sworn duty to slam down the curtain on Roe v. Wade. Pence didn't stop there. He repeatedly vowed that Trump would appoint strict constructionists in his appointments and not just for a Scalia type judicial hit on abortion rights.
Pence reflected the brute truth that the Supreme Court has since the 1960s been the political jewel in the crown for staunch conservatives. The court became the right's main prize during the tenure of Chief Justice Earl Warren. The right-wing routinely railed at the Warren court for its liberal rulings upholding and expanding civil and voting rights, labor, environmental and civil liberties protections, abortion, and reining in the corporate abuses. Conservatives viewed the high court as an unapologetic advocate of activist liberalism, and loathed it for it. The far right repeatedly screamed for Warren's head with signs that popped up along the highways throughout the South and the Heartland, "Impeach Earl Warren."
The right plainly wanted more judges on the bench who would rigidly toe the ultra-conservative line. The court became even more important as a political tool for the conservative remake of the country when it became clear that just having more conservatives in the Senate and the House was not enough to roll back the gains in civil, women's and labor rights of the past half century. Democrats even as the minority in Congress could obstruct or outright kill legislation through the filibuster. And with the nation's population and voter demographics rapidly changing with more minorities, women, same sex, and youth, who were mostly Democrats, and implacably hostile to conservative positions, this could put more spine in Democrats to stand firm against the machinations of conservatives in Congress.
The right correctly saw the Supreme Court not just as a neutral arbiter to settle legal disputes. It was a lethal weapon to skirt congressional gridlock and serve a dual role as a judicial and legislative body. This meant scrapping the long-standing tradition on the court where justices based their legal decisions solely on the merit of the law, constitutional principles and the public good, and not ideology. Trump and his hard-right conservative backers are fully aware that the court's power to be de facto legislators could last for decades. After all presidents and congresspersons come and go, but justices can sit there until death if they choose. Scalia and Thomas are proof of that. Scalia sat for 30 years and Thomas has sat on the bench for a quarter century.
Trump will be as good as his word in picking another Scalia for the high court. The Supreme Court is too much the right's jewel in the crown not to.
Earl Ofari Hutchinson is an author and political analyst. He is the author of the forthcoming book, The Obama Legacy (Middle Passage Press). He is an associate editor of New America Media. He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.