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Or Anthony Kennedy, sources say, as both LGBT-supportive jurists are in their 80s.
In another sign that a Donald Trump presidency is something to fear, reports are surfacing that he hopes not only to fill the late Antonin Scalia's vacancy on the Supreme Court, but expects further vacancies to provide him with an opportunity to appoint far-right justices.
The Trump team is preparing for the possible retirement of either Justice Ruth Bader Ginsburg, one of the court's most staunch liberals, or Justice Anthony Kennedy, the swing justice who authored the 2015 marriage equality decision, Politico reports. Ginsburg is 83 and has had serious health problems, and Kennedy is 80.
During the presidential campaign, Trump released two lists of judges and other officials from which he said he'd choose his Supreme Court nominees. All are very conservative, and some have anti-LGBT track records. That makes it likely that if the appropriate case comes before them, they would vote to revoke marriage equality, abortion rights, and other civil liberties. Trump had also pledged to appoint justices in the mold of the ultraconservative Scalia, who died last year, and the president-elect has said he thought the marriage equality decision should be overturned (he also said after the election that the issue of marriage equality was "done" and "settled").
Trump's two top choices, according to Politico, are Diane Sykes and William H. Pryor Jr. Both pose a threat to LGBT rights, given their records.
Sykes is a judge of the U.S. Court of Appeals for the Seventh Circuit, located in Chicago; the circuit covers Illinois, Indiana, and Wisconsin. Sykes was on a three-judge panel of the Seventh Circuit that in 2006 affirmed a student group's right to discriminate against those who engage in "homosexual conduct" but still be recognized as an official campus group and receive public funding. "Subsidized student organizations at public universities are engaged in private speech, not spreading state-endorsed messages," she wrote in a case involving the Christian Legal Society at Southern Illinois University's law school. She even suggested the society did not discriminate because the exclusion of gay people was based on conduct, not orientation. Sykes is the former wife of Charlie Sykes, a conservative radio host based in Wisconsin; he was highly critical of Trump during the campaign.
Pryor is a judge of the U.S. Court of Appeals for the Eleventh Circuit, based in Atlanta and covering Georgia, Alabama, and Florida. He filed a friend-of-the-court brief supporting sodomy laws when the Supreme Court heard Lawrence v. Texas, the case that resulted in the high court striking down all such laws in 2003. He also cast the deciding vote when the Eleventh Circuit decided not to hear a challenge to Florida's law barring gay people from adopting children -- a law that has since been repealed -- and he has derided LGBT rights as "political correctness." He did, however, make a surprisingly inclusive decision in Georgia state employee Vandy Beth Glenn's discrimination suit, in which she claimed she was fired because of her gender transition. He was on a three-judge panel of the Eleventh Circuit that ruled in 2011, "We conclude that a government agent violates the Equal Protection Clause's prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity."
Others on the short list, sources told Politico, most likely include Third Circuit Judge Thomas Hardiman, Sixth Circuit Judge Raymond Kethledge, Eighth Circuit Judges Steve Colloton and Raymond Gruender, Tenth Circuit Judge Neil Gorsuch, and Michigan Supreme Court Justice Joan Larsen. While their anti-LGBT paper trails are not as extensive as Sykes's or Pryor's, they are all deeply conservative, and any Trump nominee would be a far cry from Ginsburg or Kennedy.
In the Senate, which is tasked with confirming or rejecting Supreme Court nominees, Democrats would be more likely to put up a fight over a Ginsburg or Kennedy replacement than a Scalia replacement, Politico reports. A conservative succeeding Scalia would not change the balance of the court -- it would remain four liberals, four conservatives, and one swing justice, as it was during Scalia's tenure -- but a conservative replacing a liberal or swing justice would definitely alter that balance.
President Obama last March nominated Merrick Garland, a judicial moderate who is currently chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to fill the vacancy left by Scalia's death. But Senate Republicans, who hold a majority in the chamber, declined to even hold a hearing on his nomination, saying Obama's successor should select the next Supreme Court justice. Garland's nomination expired today.
"What Senate Republicans did to Judge Garland, the Supreme Court, and the Constitution was appalling. Judge Garland is respected on both sides of the aisle," Chuck Schumer, leader of the Senate's Democratic minority, told The Wall Street Journal through a spokesman. "That he did not even get so much as a hearing will be a stain on the legacy of the Republican Senate."
