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Trump Expected To Announce Supreme Court Nominee This Week


Tomorrow night, President Trump will announce his pick for the Supreme Court. We don't know yet who he'll choose to fill the vacancy left by Antonin Scalia's death, but Trump has been consistent about his intent to choose a conservative justice. It's a promise he made throughout his campaign.

PRESIDENT DONALD TRUMP: You have no choice. You got to go for Trump - Supreme Court justices.

Look; Supreme Court Justice Scalia - great - was supposed to live for a long time. He died.

CORNISH: Joining me now to discuss the leading contenders and the politics of the appointment is NPR legal affairs correspondent Nina Totenberg. Welcome to the studio, Nina.


CORNISH: First let's talk timing. Do we know why the White House moved up this announcement from Thursday to tomorrow?

TOTENBERG: That's pretty simple, the White House has had a terrible week about immigration and the executive orders, and this is a way to change the subject.

CORNISH: Now, I want to get into the politics 'cause this is surely going to be contentious, but tell us about the contenders.

TOTENBERG: Well, if I've learned anything this year, Audie, it's not to predict anything with certainty. The leading contenders are said to be three federal appeals court judges. All are very conservative to a large degree, have philosophies that mirror Justice Scalia's, all were nominated to the bench by President George W. Bush, and all are relatively young.

CORNISH: Let's hear more about them.

TOTENBERG: The two who seem to me the most likely are Neil Gorsuch, a well-regarded 49-year-old judge on the appeals court based in Denver; and Judge Thomas Hardiman, 51, a popular judge on the appeals court based in Philadelphia. He's notably well-liked by Judge Maryanne Trump Barry, the president's sister, who also sits on that court. And these two judges seem in some ways to be the flip sides of each other - Gorsuch, the scholarly Ivy Leaguer; and Hardiman, the longtime litigator with lots of experience trying cases who's said to have a practical approach.

CORNISH: Let's get into that a little more. And start with Neil Gorsuch, what about his resume is appealing?

TOTENBERG: Well, he's a Colorado native, a westerner. He's proof that you can acquire a personality that is diametrically different from your parents. His mother, Anne Gorsuch Burford, was a highly controversial take no prisoners head of the EPA during the Reagan administration, known for being quite the bomb thrower. But lawyers and judges alike described the judge as unfailingly polite, diplomatic, a good listener and a good colleague to the point of being obsequious.

He's very conservative on social issues, best known for his votes under the Affordable Care Act upholding challenges to regulations requiring employers to provide birth control coverage for women. He earned his undergraduate degree from Columbia, where he co-founded a newspaper aimed at rebutting what he considered the dominant liberal and, quote, "politically correct philosophy on campus." A graduate of Harvard Law School, he also earned a doctorate in legal philosophy at Oxford University.

In private practice in D.C., he represented mostly corporate clients. And in 2005, he became principal associate attorney general in the Bush administration's Justice Department. A year later, he was nominated at the 10th Circuit, where he's earned a reputation as a cerebral conservative with a flair for writing vividly that's similar to, though not as sharp in tone, as Justice Scalia.

CORNISH: And what do we know about Judge Thomas Hardiman? He's from the Third Circuit Court of Appeals.

TOTENBERG: He's not an Ivy Leaguer, but as one of his friends put it, he went to the Catholic Ivy Leagues - Notre Dame undergraduate and Georgetown Law School, where he helped put himself through school driving a cab. He was initially nominated by President Bush to the federal district court in Pittsburgh and later elevated to the appeals court. His conservatism has demonstrated itself most prominently in gun cases, where he's ruled often in favor of the right to bear arms.

For instance, he dissented from a decision that upheld New Jersey's restrictive law on who may receive a permit to carry a gun. Hardiman's one of those people everyone really likes, down to earth, smart, as one colleague put it a closet scholar. Several people noted that because of his many years as a trial lawyer and a trial judge, he has more experience trying cases than most of the other Supreme Court justices. Personally, he's said to be very conservative or even in the view of some a little wacky. If you get him going, said one colleague, you'll find out he thinks climate change is a hoax.

CORNISH: And then there's one other prominent contender you wanted to talk about, and that's Judge William Pryor. You know, he's from the appeals court based in New Orleans. What do we know about him?

TOTENBERG: Well, he was the odds on favorite going in, but he called Roe versus Wade the worst abomination in American jurisprudence, made other controversial comments, and that's made him the easiest nominee for the Democrats to filibuster.

CORNISH: Before I let you go I want to ask about the filibuster. What can Democrats do here? What's their power when it comes to fighting these Supreme Court nominees?

TOTENBERG: Well, there still is the possibility of a filibuster for Supreme Court nominees, not lower court nominees. And there are certainly indications the Democrats are going to do that, but of course the Republicans can get rid of the filibuster if they want to. They probably have the votes to do it by simple majority.

CORNISH: That's NPR legal affairs correspondent Nina Totenberg. Nina, thank you.

TOTENBERG: Thank you.

[POST-BROADCAST CORRECTION: In this story, we say Judge Pryor sits on a federal appeals court based in New Orleans. In fact, Judge Pryor's court is based in Atlanta.] Transcript provided by NPR, Copyright NPR.

Corrected: January 31, 2017 at 12:00 AM EST
In this story, we say Judge Pryor sits on a federal appeals court based in New Orleans. In fact, Judge Pryor's court is based in Atlanta.
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.