This is one of his main campaign arguments: if he is re-elected, Donald Trump will be able to complete the transformation of the Supreme Court of the United States by bringing in, one, two and even, who knows, up to four new ones. conservative judges.
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According to the Constitution, judges of the Supreme Court are appointed for life by the president and then confirmed by the Senate. These positions are very “valuable: there are only nine and they are not often vacant,” said Justin Crowe, associate professor of political science at Williams College.
As early as the 2016 campaign, Donald Trump had published a list of his potential candidates, chosen for their conservative service, in order to seduce the religious right, skeptical of this divorced billionaire, with a flowery vocabulary and not particularly practicing.
Vying for a second term, he promised to repeat the exercise and could make his selection known in the coming days. “It is a way of saying to his constituents: I am always with you”, “it can mobilize people who might be tempted to abstain,” said Justin Crowe.
In front of them, Donald Trump prides himself on having already brought two judges to the Supreme Court. But the five conservative magistrates do not form a monolithic bloc and, in the spring, some joined their voices to their progressive colleagues, in particular to expand the rights of homosexual and transgender employees.
“We have experienced defeats with a Court that was supposed to be in our favor,” admitted the presidential candidate in June, furious at these setbacks. Quickly, he turned the situation around by asking for a new mandate to go further: “There will probably be two new judges in the next four years, it could even be three or four …”
For Steven Schwinn, professor of law at the University of Illinois, it is “rather unlikely that we will have four vacant positions” during the next term. “It’s exaggerated”, also believes Justin Crowe.
For the two experts, the dean and muse of the left, Ruth Bader Ginsburg who is 87 years old and suffers from liver cancer, her progressive colleague Stephen Breyer, 82, and the only black judge of the Court, the very conservative Clarence Thomas, 72, might be tempted to move on.
But “they have all demonstrated a great capacity for resistance, starting with Judge Ginsburg” who has already overcome other tumors and has very rarely been absent for illness, recalls Steven Schwinn.
The magistrate has regularly said that she will stay in office as long as possible, citing the example of John Paul Stevens who retired in 2010 at the age of 90.
The outcome of the election will also weigh in their decision. If Donald Trump is re-elected, Judges Ginsburg and Breyer are likely to try to stay in office as long as possible. Conversely if his Democratic rival Joe Biden wins, “I do not see Clarence Thomas resign, unless he can no longer work at all,” said Tracy Thomas, professor of constitutional law at Akron University.
As for the other magistrates, aged 53 to 70, none has indicated their intention to retire.
A health or personal problem remains possible, as during the death of conservative judge Antonin Scalia in 2016. His death opened an institutional crisis, the Republican Senate leader Mitch McConnell having refused to hear the judge chosen by Barack Obama for the replace, on the pretext that the United States was in an election year.
If ever, this scenario happens again by November, Mitch McConnell has let it be known that he would not have the same moods.
What if a position becomes free between the ballot and the new president taking office in January? Nothing legally would prevent President Trump from filling it even in the event of defeat at the polls, experts say.
In the course of history, “six presidents have appointed judges to the Supreme Court after losing an election,” underlines Tracy Thomas who would “not be surprised” to see the former real estate magnate attempt this poker shot.