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Trump’s high court pick likely to hew to Scalia’s example

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While it is anyone’s guess at this point whom President-elect Donald J. Trump will appoint to the U.S. Supreme Court vacancy created by the death of Justice Antonin Scalia, he or she is expected to be a conservative judge whose rulings will be sympathetic to employers’ interests, experts say.

“More likely than not, the nominee is going to be the ilk of Justice Scalia, who will look at statutes and interpreted them narrowly rather than broadly,” said Gerald L. Maatman Jr., a partner with Seyfarth Shaw L.L.P. in Chicago.

As a result, employers are likely “to do better than they might have done had a Democrat won and been in control of the process,” he said.

“The Obama administration governed through executive order and regulation,” said Michael J. Lotito, co-chair of Littler Mendelson P.C.’s Workplace Policy Institute in San Francisco. “Mr. Trump is going to be able to select someone who, I think, is going to be much more aware of the importance of separation of power.

“I think the candidate will be sensitive to the founders’ concept that there’s different responsibilities for the different branches” and “will look with a healthy dose of skepticism with response to this deference that tends to get paid to executive action,” Mr. Lotito said.

Mr. Maatman said that under the Obama administration, federal agencies had acted in “a very activist, expansive manner,” and that with a Trump appointee, Supreme Court rulings not favorable to employers may be “peeled back.”

Experts say one issue the Supreme Court is expected to rule on after the vacancy is filled is arbitration. The Supreme Court is now considering accepting certiorari for four cases over the issue of enforceability of class action waivers contained in mandatory arbitration provisions under the Federal Arbitration Act and the National Labor Relations Act.