Justice Samuel Alito listened intently as prosecutor Karl Racine made the case: “Crooked Friar Laurence, with his small hands …” There was a lot more where that came from: jokes about “bigly”, “low energy”, building a wall, dodgy email servers and wayward opinion polls to get the audience laughing,



Taking a break from his day job as a supreme court justice, Alito was presiding over the mock trial of Friar Laurence, accused of negligent and reckless conduct that led to the deaths of Romeo and Juliet, for the Shakespeare Theatre Company in Washington. The 66-year-old cut a genial and amused stage presence but left the most on-the-nose political gags to others.

It was a sage decision in the current hyperpartisan climate. After the death of Alito’s fellow conservative Antonin Scalia last February, Barack Obama nominated DC appeals court judge Merrick Garland to replace him. But the Republican-led Senate refused to consider his nomination, leaving the seat vacant so it could be filled by the winner of the presidential election.

The strategy was condemned as crude, cynical and inimical to the rule of law. It also worked. Now President-elect Donald Trump has promised to nominate a conservative in the mould of Scalia. Having previously released a list of 21 candidates, he said he had whittled the list down to “probably three or four”. According to the incoming White House chief of staff, Reince Priebus, Trump will announce his pick around the time of his inauguration on 20 January.

In theory that should mean the justice will take his or her seat at the start of April: current members of the court have faced an average of 71 days between nomination and confirmation. But the Garland case may have upended all protocol. Democrats, smarting over the way he was treated, could seek to throw sand in the gears for as long as possible.

“I think there will be a huge fight,” said Marge Baker, executive vice-president at People For the American Way, a liberal advocacy group that intends to pressure Democrats. “Republicans totally threw out the playbook on President Obama’s nomination; Merrick Garland was a moderate nominee. I can’t imagine the Democrats will roll over and we’ll certainly push them not to.”

Some Democrats, a minority in the Senate, seem ready to do battle. Senator Jeff Merkley of Oregon told MSNBC last month: “There’s no legitimacy to a supreme court justice in a seat that’s been stolen from one administration and handed to another. We need to do everything we possibly can to block it … it won’t be DOA unless the American people understand that this is the theft of the court.”

There is plenty to fire up liberals. Among the rumoured contenders are Bill Pryor, 54, who sits on the 11th circuit court of appeals and once described Roe v Wade, the 1973 decision making abortion legal, as the “worst abomination in the history of constitutional law”. Another is Diane Sykes, 58, who sits on the seventh circuit court of appeals and voted to uphold Wisconsin’s voter ID law – seen by some as crucial to Hillary Clinton’s shock defeat in the state – as well as supporting businesses that challenged Obamacare over contraception access.

Both are relatively young and therefore good long-term investments, which Trump is said to favour. Like Scalia, both are originalists, which the late justice defined as interpreting the constitution as it was meant when adopted, not according to contemporary mores.

Baker said: “They’re among the most extreme and ideological activists on the federal bench. Judge Pryor would be devastating to the rights of women, LGBT Americans, and workers … Judge Skyes for her part has ignored constitutional protections, like the right to a fair trial and the right to vote, to push her far-right ideology.”

At least eight Democrats will be required to give Trump’s nominee the 60 votes needed for confirmation. But if they hold out and attempt to filibuster, Republicans may reach for the “nuclear option” of changing the rules to allow nominees to be confirmed by a simple majority vote. Democrats made a similar change for all judicial nominees except the supreme court in 2013.

The death of Scalia left the supreme court split between four conservatives and four liberals; if Trump’s nominee is not confirmed before the end of March, it will be the longest vacancy in the modern era. The replacement is expected to restore the long-held conservative majority, whereas Clinton looked set to give liberals the edge. Potential issues at stake include abortion, the death penalty, immigration, religious rights, presidential powers and transgender rights.



Edward Fallone, a professor at Marquette University School of Law – from which Sykes is a graduate – in Milwaukee, Wisconsin, said: “It will be Trump’s way right out of the gate of giving conservatives something they want. If he compromises on other things, like immigration for example, giving them the supreme court nominee of their dreams will go a long way to shoring up his support.”

The supreme court nomination may be a sideshow compared with Trump’s choice of attorney general, Jeff Sessions, a hardliner on immigration accused of making racist comments in the past. Nearly 150 outside groups are reportedly pressuring Senate Democrats to stop him.

Fallone added: “They have to recognise they can’t block every appointment. They’re going to have to concentrate their fire. Whoever Trump appoints can’t be more conservative than Scalia: it restores the status quo.”

The bigger question, he suggests, is what would happen if another justice, such as the liberal Ruth Bader Ginsburg, 83, has to be replaced during Trump’s term. “You would probably still need an additional Trump appointment to overturn Roe v Wade. It may be the real fight is over the second Trump appointment, maybe after midterm elections when Democrats might be in a stronger position. They may decide this is one they can afford to let through.”

Vincent Eng, a lobbyist whose clients include the National Asian Pacific American Bar Association, agreed. “Democrats and liberals have to pick their battles,” he said. “I don’t see this selection as a big fight, as opposed to what will happen if Ginsburg goes.”



Conservatives also believe the vacancy will be filled sooner rather than later. Curt Levey, an attorney with FreedomWorks and the Committee For Justice, said: “You’re replacing Scalia so the court isn’t going to be any further right than a year ago. When Anthony Kennedy or Ruth Bader Ginsburg retire, they’ll fight hard.

“The Republicans fought Merrick Garland because they faced armageddon. The Democrats are not facing armageddon here. My guess is they will give the nominee a tough ride but they won’t filibuster; they could filibuster but they would lose.”

As for Garland, on 18 January, two days before Trump’s inauguration, he will resume hearing cases in his current position as chief judge of the US court of appeals for the District of Columbia circuit. At a recent Hanukkah reception at the White House, Obama welcomed him as “one of the country’s finest jurists”.