Earlier this year, I compared the Republican Supreme Court challenge to playing poker. With President Obama nominating Merrick Garland for the vacant seat left after the death of Justice Antonin Scalia, the GOP-controlled Senate refused to hold hearings, much less a vote. Republicans were betting on winning back the Oval Office and maintaining control of the Senate.
Even the day before Election Day, that strategy seemed to be the longest of odds. With polls showing Hillary Clinton with commanding leads — including in the Electoral College — and Democrats poised to pick up enough Senate seats to gain either a 50-50 split or even an outright majority, Republicans seemed to be drawing dead. Democrats had a strong made hand; let’s call it a straight flush. In contrast, Republicans needed to pull not just one miracle draw card, but two.
Then the election results came in. Before the sun came up the next day, Republicans pulled exactly what they needed to lay down a royal.
First came the U.S. Senate tallies. While Democrats hung on to Nevada and beat incumbents in New Hampshire and Illinois, strong challenges long-expected to win faltered. Russ Feingold in Wisconsin and Evan Bayh in Indiana lost by surprising margins. And Sen. Pat Toomey (R-Pa.) and Sen. Marco Rubio (R-Fla.) both held their seats.
Then came the card nobody seemed to see coming — Donald Trump rolled to a relatively easy win in the presidential race. Combined with a Republican majority in the Senate, President-elect Trump’s victory will payout enormous judicial returns for the GOP when he is sworn in come January. He will be able to fill vacant seats knowing that the Senate majority will almost certainly support him.
Of course, the first seat to be filled will be the biggest. Merrick Garland’s nomination swirled down the drain about the same time Pennsylvania returned its election results. Consequently, a new SCOTUS justice will be nominated by the incoming president.
One of the names at the top of his list is familiar to some of us, because it comes from our home state. Colorado Supreme Court Justice Allison Eid made his original shortlist in May. Another Coloradan, 10th Circuit Chief Judge Timothy Tymkovich, joined her when he released another set in September. They represent two out of 21 total under consideration.
I have been lucky enough to know both. And either would do our state proud.
Before she became a justice, professor Eid taught me constitutional law at the University of Colorado School of Law. Her precision and passion for the law inspired me to pursue a career where I could focus on constitutional questions. Her ability to ask insightful questions and provoke detailed analysis served her students well in class and would serve our country well on the Supreme Court. Known for principled, intelligent opinions, Justice Eid often shines most brightly in her dissents, just as Justice Scalia always did. Only recently entering her fifties, Justice Eid could be a powerful force for decades to come if nominated by President Trump.
While I never took any classes from Judge Tymkovich — though I wish I had audited his Election Law course — he previously partnered with my old law firm in a prior iteration. Consequently, I saw him often outside the court, almost as often as I read his detailed, analytical and powerful decisions from the bench. An advocate for our state as solicitor general and an educator to many of the finest attorneys I know who clerked for him, Judge Tymkovich would be an intellectual lion on the high court.
Republicans won big this November. And if they turn to Colorado courts looking to collect, we will all profit.
