One of Donald Trump’s first acts as president will, I hope, be to nominate a conservative to fill the vacancy left by Justice Scalia. I don’t doubt that Trump will pick a conservative, most likely someone from his lists.
I’m also confident that the Senate will confirm Trump’s pick. If 60 votes aren’t to be had, the Senate likely will abolish the filibuster, as the Democrats did for lower court nominees.
We shouldn’t delude ourselves that the confirmation of a conservative nominee will alter the Supreme Court, though. At best, the new Justice will restore the 4-4-1 balance of recent years. Justice Kennedy, a non-conservative, will be the swing vote in the big cases.
Only if Justice Kennedy or one of the four liberal Justices leaves the Court might the balance tip to conservatives. But that depends on Trump’s second nominee being conservative. Of this, I’m not highly confident.
In sum, Trump’s victory saved us from a Supreme Court dominated by liberals, but will not quickly make the Court conservative. Until Trump puts conservatives on the Court back-to-back, with one of them replacing Kennedy, Ginsburg, Breyer, Sotomayor, or Kagan, we’ll have the kind of Court we’re accustomed to — a so-so Court, neither liberal nor conservative. Nor is it clear that, given the opportunity, Trump will pick two conservatives back-to-back.