WASHINGTON (Circa) — Expectations and anxieties are growing as the public waits to hear who President Donald Trump will select to replace Justice Anthony Kennedy when he steps down from the United States Supreme Court at the end of July.
Trump will have the chance to put his stamp on the nation's highest court and cement the type of majority that many conservatives have been trying to establish for decades.
During a speech in Wisconsin Thursday, Trump stressed, "the most important decision a president can make is the picking of United States Supreme Court justices — if you’re lucky enough to do that."
The process for picking the next Supreme Court justice is quickly underway. President Trump said Friday he will announce his choice to succeed Justice Kennedy on July 9.
Earlier in the day, Trump met with a bipartisan group of senators to discuss the nomination process that Senate Majority Leader Mitch McConnell, R-Ky., expects will take place in the fall, before the November midterm elections.
Trump has reportedly narrowed down his choices to five finalists selected from the list of 25 candidates released during his presidential campaign and updated in November 2017. Each has strong conservative credentials, politically, ideologically and in their approach to the law, according to people familiar with the list.
Thomas Jipping is a senior legal fellow with the Heritage Foundation, one of the conservative think tanks that helped craft the list of candidates. He hopes and expects Trump's next Supreme Court pick will be in the vein of Justice Neil Gorsuch, an experienced, conservative judge who received bipartisan support when he was confirmed last year.
"With that model, I think President Trump is going to help bring our judiciary back to the way it was designed to work," Jipping noted, downplaying the importance of the next justice's political leanings on specific issues.
Each candidate on Trump's list represents that originalist principle, he explained. Namely, they believe the role of a judge is to act within the constitutional framework of interpreting the law, rather than legislating or overturning legislation from the bench based on "whim."
Leonard Leo, the executive vice president of the Federalist Society, a conservative legal group that helped draft the list of candidates, insisted, "You can throw a dart at that list and in my view, you would be fine."
Leo is playing a lead role advising Trump in his search for a second Supreme Court nominee after assisting in the selection of Neil Gorsuch last year.
In a Thursday interview with CBS News, Leo said Trump is looking for three core qualities. "One, extraordinarily well qualified. Two, people who are, in his words, 'not weak.' And thirdly, people who are going to interpret the Constitution the way the framers meant it to be, which is the way he put it," he said.
During a campaign rally in North Dakota earlier this week, Trump began to provide a thumbnail sketch of the type of juror he intends to select. First, Trump said, "We need intellect."
Second, Trump indicated his preference for a younger candidate, someone, he said, "that's going to be there for 40 years, 45 years." At 49 years old, Trump's first nominee, Justice Gorsuch, is the youngest judge. Before Gorsuch was confirmed, the average age on the bench was 71.
There may be only one candidate on Trump's list that could realistically serve a 45-year term, Patrick Wyrick, a 37-year old judge on the Oklahoma Supreme Court.
The five candidates rumored to be on Trump's short list include Thomas Hardiman, 52, of the 3rd Circuit Court of Appeals, Raymond Kethledge, 51, of the 6th Circuit Court of Appeals, Brett Kavanaugh, 53, of the D.C. Circuit Court of Appeals, Amy Coney Barrett, 46, of the 7th Circuit Court of Appeals, and Amul Thapar, 49, of the also of the 6th Circuit Court of Appeals.
Third, Trump said he wanted to replace Justice Kennedy with someone who will "carry on his great legacy."
Exactly what part of Kennedy's legacy is not clear. By most measures, Kennedy was a traditional conservative jurist, who believed the role of the courts was limited to interpreting the law and the U.S. Constitution as written.
He often ruled on the side of protecting individual rights, a quality that led him to rule in favor of legalizing same-sex marriage, limiting the death penalty and upholding abortion protections.
The fact that his conservativism was judicial, not strictly political, sometimes frustrated Republicans. Based on what Trump promised his supporters on the campaign trail, he seems more likely to replace Kennedy with someone more ideologically conservative, rather another spoiler, said Stephen Wermiel, a constitutional law professor at American University Washington College of Law.
For decades, the court has been dominated by Republican-appointed justices. Since Richard Nixon, Republican presidents have appointed 13 justices to the Supreme Court and Democrats have appointed four.
Despite the predominance of GOP-appointed justices, there were always moderates like Kennedy or Sandra Day O'Connor, or Lewis Powell. These "swing votes" prevented Republicans from "a five-justice working majority" that would allow them to advance core political objectives, like rolling back court decisions on abortion or affirmative action, Wermiel continued.
"I think that's what this moment is about," he said. "This is the moment to achieve what they have been looking for for 50 years."
Some worry an ideologically conservative court will choose to hear cases that would require revisiting previous landmark decisions, such as Roe v. Wade which legalized abortions or Obergefell v. Hodges, which legalized same-sex marriage.
On the campaign trail, Trump promised supporters he would appoint a justice aligned with his political views on abortion, guns and other hot-button issues.
Whether the court reconsiders these decisions will depend on whether Trump selects an ideological issue-oriented conservative from his list or one of the traditional, institutional conservatives, who are typically opposed to revisiting and overturning past precedent.
Those and other questions should become clear by July 9, when Trump said he would formally announce his nominee. Under current Senate rules, Trump needs a simple majority to approve the next Supreme Court justice.