Could Trump’s immigration order sink his Supreme Court nominee?

Donald Trump’s immigration executive order is in a gray area that could ultimately be decided by the US Supreme Court. And the swing vote could be the very person Trump is about to appoint. Karen Bleier/AFP/Getty Images/File

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Imagine, for a second, this alternative reality: What if President Trump never signed an executive order Friday that severely limited immigration from many Muslim-majority countries?

This week, Trump’s pick for the US Supreme Court would be a relatively predictable affair -- and likely a win for his administration. To some fanfare, Trump would have, as originally planned, announced his high court nominee Thursday to fill the long-vacant spot once held by conservative Antonin Scalia.

Trump would have kept his campaign promise to appoint a judge with an anti-abortion track record. Then the nation’s political debate would return to a fairly predictable pattern: each side of the abortion debate would ramp up their advocacy and television ads, then a Senate controlled by Republicans would likely vote to confirm the nominee to the court.

End of story. A win for Trump.

But, of course, Trump did issue his controversial executive order on immigration. Backlash ensued -- including from some Republicans. Judges in Boston, New York, Virginia and Washington State issued stays that halted much of the executive order.

Now Trump’s executive order is in legal limbo -- a gray area that could ultimately be decided by the US Supreme Court. And the swing vote could be the very person Trump is about to appoint to the court.

Now, in the wake of a weekend of political upheaval, Trump might think he is playing smart politics by moving up his announcement to prime time on Tuesday. But such a move could actually sink his nominee.

Instead of a likely win for the court’s lifetime appointment, Trump’s nominee will be grilled by the Senate Judiciary Committee on the legal rectitude of the president’s executive order on immigration.

This would be a problem for Trump. Republicans have a two-seat majority in the Senate, and there are eight Senate Republicans so far who oppose the move, citing either that it is unconstitutional or contrary to US values. They include Maine’s Susan Collins, Arizona’s John McCain, Arizona’s Jeff Flake, Colorado’s Cory Gardner, Kansas’s Jerry Moran, Nevada’s Dean Heller, South Carolina’s Lindsey Graham and Nebraska’s Ben Sasse.

(This list does not include additional criticism from Senate Foreign Relations Chairman Bob Corker, a Tennessee Republican, or Lamar Alexander, another Tennessee Republican, who have said they found fault with the process of issuing the order, including its legal vetting.)

If just three of those eight Republicans say the travel ban, which is headed to the court anyway, is such a fundamental issue that they would vote against Trump’s pick for the court -- it will be game over for the appointee. Not only would this be a major loss for Trump’s administration, it could also set a poor precedent for Trump’s ability to work with Congress.

But there are two ways that Trump could get around this problem. First, Trump could ask the US Senate to delay hearings and a vote until after the protests calm down.

Secondly, Trump’s appointment could conveniently disagree with him on the order or at least acknowledge its criticisms during his or her hearing. After all, some of Trump’s cabinet picks have disagreed with him on a number of issues, and Trump seems to be fine with it. And they are likely going to be confirmed as a result.