Trump’s Immigration Order Casts Shroud Over SCOTUS Pick

By Published on January 29, 2017

President Donald Trump’s executive order halting immigration from states with high instances of terror is likely to feature prominently in the pending Supreme Court confirmation process.

The president is scheduled in the coming days to name a nominee to the vacancy on the high court occasioned by Justice Antonin Scalia’s death. What the nominee believes about Trump’s order will undoubtedly be a sticking point for many Democrats, some of whom have already pledged all out resistance to Trump’s pick.

It would be most unusual for a nominee to the federal bench to give an opinion as to a legal controversy of this stature. Generally, nominees to federal courts try to avoid taking definitive positions on a wide range of issues, to ensure they attract as many votes as possible. Perhaps more importantly, it is usually improper for a judge to render an opinion about a question that may end up before them.

In this instance, however, Senate Democrats could use a nominee’s evasiveness on the matter as a pretext for blocking the nomination. That, in turn, would force Senate Republicans to abolish the judicial filibuster, and confirm the nominee on a simply majority vote. Senate Majority Leader Mitch McConnell has indicated he is reticent about pursuing such a course, but opposition from Senate Democrats might leave him little choice.

One watchdog group is urging the Senate to extract an answer on the executive order from the nominee. Fix the Court, a nonpartisan organization that advocates for greater access and transparency at the Supreme Court, said elusiveness on the part of the nominee would be “cowardly.”

“The nominee may want to withhold comment since a case related to the executive order may reach his desk, but demurring is cowardly, and the American people deserve to know where the nominee stands on issues as important as this,” said Gabe Roth, the group’s executive director, in a press statement.

“Anyone being considered for a seat on the Supreme Court has the duty to demonstrate his or her fidelity to the Constitution, and articulating one’s beliefs on ideals like due process and equal protection would seem to be the sine qua non of becoming a justice.”

 

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