As President, Trump Will Likely Nominate Supreme Court Justices

Tuesday's election decided that the Republican Party would control the executive and legislative branches of government. What do the election results mean for nominations to the Supreme Court?

RENEE MONTAGNE, HOST:

And joining us now to discuss how those results will affect the Supreme Court is NPR legal affairs correspondent Nina Totenberg. Good morning.

NINA TOTENBERG, BYLINE: Good morning.

MONTAGNE: Let's start, Nina, with the immediate effect of Donald Trump being the next president of the United States.

TOTENBERG: Well, the vacancy created by the death of Justice Antonin Scalia almost a year ago will now be filled not by Obama nominee Merrick Garland, but by a Trump nominee. And with Republicans continuing to control the U.S. Senate, that nominee will almost certainly be easily confirmed, and the court will then revert to the conservative 5-to-4 majority that's prevailed for decades.

MONTAGNE: What do we know now, though, about how Donald Trump would choose his nominee?

TOTENBERG: We don't actually know a lot. He's issued two long lists of potential nominees. Significant is who's not on that list. Some of the most distinguished conservative judges and lawyers in the country are not on that list. We don't know who the most influential people will be. We don't know any of that. We just sort of have to take it on faith that this is going to be a very conservative nominee because all of the people on the list are very conservative potential nominees.

MONTAGNE: And there is one vacancy on the court now, as we've just said. What to expect in the next four years?

TOTENBERG: Well, it's entirely possible that we'll have more vacancies. Justice Ruth Bader Ginsburg is 83. Justice Stephen Breyer, also a Democratic appointee, is 78. Justice Anthony Kennedy is sort of a center-right justice appointed by President Reagan. He's 80. Any or all of those people could retire or be hit with health problems, et cetera.

And it's entirely conceivable that, in the next four years, we'll have three more vacancies and that we would have the Trump effect on the court for generations to come. So you could imagine the Court's abortion decision, for example, Roe v. Wade, reversed.

You could imagine a court that's already quite sympathetic to the business community becoming much more so, a court more hostile to regulations overall, a court far more deferential to religious objections to anti-discrimination laws. And these are just the ones I can think of off the top of my head. For the last half-century, Renee, until Justice Scalia's death, the Supreme Court has had a majority of Republican-nominated justices.

But what's been really unusual about the last eight years is the deep suspicion evidenced by the court's conservatives about executive power, presidential power and the relative deference of the court's liberals. So it's going to be particularly interesting to see if that changes when the president is a Republican with an agenda instead of a Democrat with an agenda.

MONTAGNE: NPR legal affairs correspondent Nina Totenberg, thanks very much.

TOTENBERG: Thank you, Renee.

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