Professor Harold Koh of Yale Law School presented his paper ” Triptych’s End: A Better Framework To Evaluate 21st Century International Lawmaking” at a faculty workshop preceding our 2017 Centennial Lecture.
What does a Trump Presidency have in store for the Supreme Court? Answering this question requires considering two separate, albeit related, questions: (1) the impact of one or more Trump nominees on the Supreme Court, and (2) the possible legal challenges to policy Trump has endorsed that might end up in the Supreme Court. In this post, I’ll focus on the first question; in a subsequent post, I’ll look at the second.
One of the immediate implications of Trump’s victory is that President Obama nominee Merrick Garland’s hopes of getting on the Supreme Court are over. The seat left vacant by Justice Scalia’s death in February will remain open until the new President has an opportunity to make his own nomination. (Some have urged Obama to simply give Garland his seat based on the fact that the Senate’s refusal to hold hearings constitutes some sort of consent. But it is hard to imagine the current President seriously considering this constitutionally questionable path.) The Republican strategy of refusing to hold Senate hearings on the nominee until after the election worked. What looked a few weeks ago like a desperate stalling action that had run its course now looks like a high-stakes gamble that paid off.