Ranking Trump's Supreme Court Choices
Justice Anthony M. Kennedy handed Republicans something of a gift when he announced his retirement. Assuming Donald Trump’s pick to replace Kennedy gets confirmed – about which, more later – the oldest conservative justice would be Clarence Thomas, at age 70. Even if Trump does not get any more Supreme Court picks, conservative control of the court is likely to continue for the next decade.
More importantly, this is likely to be conservative control unlike anything we’ve seen since the 1930s. To be sure, Kennedy’s “moderation” was always overstated, and this has been a quite conservative court. Kennedy was not moderate, he was heterodox, meaning that he held some views that were atypical for conservative judges, but those views were often strongly held. Contrast his majority opinion in Obergefell, establishing a right to marriage regardless of sexual orientation, with the dissent he joined in NFIB, which would have struck down Obamacare in its entirety. His heterodoxies just happened to manifest on issues such as abortion, marriage equality, and the death penalty, issues that are of particular interest to liberals.
Regardless, that heterodoxy is soon to be gone, at least on the current ideological matrix (Franklin Roosevelt’s appointees were all “liberal,” but as the court’s agenda shifted from economic issues to civil liberties, new divisions emerged). To emphasize: All of the potential justices I cite below would likely be more conservative than Kennedy. It is almost pointless to write about their ideological orientations, as doing so would run something like: “Makes Clarence Thomas look moderate,” “very conservative,” “very, very conservative” and so forth.
Instead, I am simply going to rank them from the point of view of what they bring to the table for Trump and for judicial conservatives (liberals, of course, can read this in reverse order). Again, the main takeaway is that these prospective justices would all mark a shift to the right in the court’s jurisprudence, and will at the very least put the brakes on the few advances liberals were able to make under Kennedy.
7. Mike Lee: To be honest, it is a bit surprising that the Republican senator from Utah made Trump’s final list of seven. Not because he’s a politician – appointing politicians to the Supreme Court was once a fairly routine practice for presidents. Only three of the 12 court picks that Franklin Roosevelt and Harry Truman made had served previously as judges, and two of those had previous political experience. Nor is it because of some lack of conservatism, as he would probably be poised to carry the flame of Clarence Thomas’s originalism for the next 30 years.
Instead, Lee falls short because of the dynamics surrounding the pick. Republicans have a narrow 51-49 edge in the Senate, and John McCain is unlikely to return to the chamber anytime soon. In other words, if Republicans lose a single vote and no Democrat defects, the nomination will fail.
The two most likely Republican defectors are Susan Collins and Lisa Murkowski. Both women are personally pro-choice, and they represent the two states with the highest percentage of voters who favor legal abortions of any Republican senators. Collins has stated that she wouldn’t vote for a nominee who would vote to overrule Roe v. Wade.
Collins’ statement has quite a lot of wiggle room, as she also expressed doubt that Justice Neil Gorsuch, who is probably as conservative as any member of the court, would vote to overrule Roe. But Lee stands out for his rather outspoken pro-life views, and having served in the Senate conference with Lee, Collins is doubtless aware of his views on Roe. So Lee’s problem is straightforward: He’s probably unconfirmable.
6. Thomas Hardiman: Hardiman, a judge on the United States Court of Appeals for the Third Circuit, was Trump’s runner-up to fill the seat of Antonin Scalia. But unlike some of the names that follow, Hardiman wasn’t on the list because he was a favorite of the conservative base. He was on the list because he was a favorite of Trump’s sister, who served with Hardiman on the Third Circuit, and because he clicked with Trump during his interview.
Part of why I rank Hardiman this low is that I think his time has probably passed. Trump relies heavily on family advice, but he’s had time to build a larger circle of advisers that he trusts. Trump also knows how important the Gorsuch appointment was to keeping his favorability ratings within the Republican Party high during some turbulent times, so I think he’ll look for someone who is more popular with the base (and who would be more reliable for the base). If Hardiman were to be confirmed, his record suggests a workmanlike, conservative jurisprudence, but not one that is as likely to result in conservatives singing his praises for decades to come.
5. Joan Larsen: Larsen is a recent appointment to the United States Court of Appeals for the Sixth Circuit, after serving a brief stint on the Supreme Court of Michigan. Basically, I think Amy Coney Barrett, described below, has all of Larsen’s pluses and minuses, with a few more pluses.
4. Amul Thapar: Amul Thapar served for nine years on the United States District Court for the Eastern district of Kentucky, before becoming Trump’s first Circuit Court nominee. He has sat on the Sixth Circuit for a little bit more than a year. His pluses for conservatives are fairly straightforward: He would be the first South Asian Supreme Court justice, his judicial background suggests a commitment to originalism, and he is one of the youngest nominees. He checks all the boxes for conservatives; his only negative is that the remaining three nominees are certifiable conservative rock stars.
3. Amy Barrett: At this point, we are down to the three choices from which I believe Trump will choose (I wrote this before it was reported that they were, in fact, his top three). Judge Barrett, a former clerk to Scalia and a Notre Dame law professor, became something of a cause celebre on the right when, during her Senate confirmation hearing for the United States Court of Appeals for the Seventh Circuit, Sen. Dianne Feinstein expressed what some considered to be anti-Catholic sentiments by suggesting that “the dogma” lived loudly within Barrett.
As far as “intangibles” go, Barrett is the clear leader of the three finalists, and probably of the entire bunch. She is young, telegenic, is the mother of seven children (including two adopted from Haiti), and is devoutly religious. This, combined with Feinstein’s questioning of her religiosity, would probably help improve Republican enthusiasm about voting in the fall (at least to the extent that Supreme Court nominations can be a salient factor in vote choice). In addition, she would place Sen. Joe Donnelly of Indiana on the horns of a dilemma during a hard-fought re-election campaign: risk angering his Democratic base, or risk angering moderately conservative Republicans in the state, some of whose vote he needs in order to have a chance at winning. Overall, Democratic activists are almost spoiling for this fight, but I’m not sure it’s a fight they are likely to win.
So why is Barrett last of the final three? Two interrelated reasons. First, she has served on the Seventh Circuit for less than a year. This raises some fair questions about her qualifications for a Supreme Court seat. We have had justices with short tenures on Circuit Courts – or no judicial experience – elevated to the high court before, but most of them had either served on a state court (David Souter), run an administrative agency or served as solicitor general (Clarence Thomas, Elena Kagan), or been a lawyer of national renown (Louis Brandeis). These questions would probably not get a lot of traction, but they are fair questions, and are certainly not issues with the top two.
Second, she probably has the highest “squish” potential of the top three, although it is probably a low potential. Without a lengthy paper trail, conservatives are relying in part on things such as her family and Federalist Society membership to infer where she stands on questions of judicial interpretation. This isn’t unreasonable, but all of the judges on this list have been indirectly blessed by the Federalist Society. To be sure, even judges with lengthy records can “evolve” (see Blackmun, Harry), but the lack of a paper trail results in more guesswork as to how a justice will rule (see Souter, David). At just 46 years old, it is likely that Barrett will be eligible for another opening during her lifetime; it may make more sense to allow her to develop a record, and to hold her for one of those slots.
2. Raymond Kethledge: On Judge Kethledge, we can be brief. Kethledge has a lengthy record of service on the Sixth Circuit with few indications of ideological deviation, is a brilliant writer, and holds some of the positive intangibles of Barrett (Kethledge enjoys hunting, is from the Rust Belt, and has experience teaching at a top-ranked law school) without some of the baggage. The personable Kethledge would probably be the most confirmable judge of the top three, although that might not be something Republicans are hoping for. In many ways he might be the most well-rounded pick, but the last judge brings something important to the table . . .
1. Brett Kavanaugh: In the interest of full disclosure, I worked as a summer associate with Judge Kavanaugh when he was a partner at Kirkland & Ellis in 1999. With that said, I haven’t spoken with him in over a decade, and am unsure he would even remember me.
Kavanaugh is probably the most controversial among the top three picks, as he makes both conservatives and liberals uneasy. Liberals would be uncomfortable with his work for Independent Counsel Ken Starr and the George W. Bush administration, while conservatives worry about his ruling that they believe laid the intellectual foundation for John Roberts’ decision to uphold Obamacare.
The latter concern, at least, is misplaced, as Kavanaugh was ruling on mootness, a separate claim unrelated to the overall merits of the Obamacare claim. Nevertheless, his ties to Bush and Starr would probably cause Democrats to launch a full tilt campaign against him similar to the one that would be launched against Barrett, without exciting conservatives to the same degree that Barrett would.
So why would conservatives want him? The answer is simple: Since Scalia’s death, conservatives have been without a William Brennan. What on Earth does that mean? Courts are usually divided into eras by chief justices (the Burger Court, the Rehnquist Court), but the chief is rarely the leading intellectual on the court. The chief justice is charged with a bevy of administrative tasks and institutional responsibilities.
So, while we have the “Marshall Court,” it was Justice Joseph Story who often did the work of assembling the precedents and writing some of the more memorable opinions. With the “Warren Court,” William Brennan was often the one who, in consultation with the chief, would put together the winning coalition for the liberal position. The genial Brennan was responsible, in part, for shaping Blackmun’s leftward tack, and for extending Warren Court precedents longer than anyone thought possible. Moreover, Brennan was a brilliant jurist and a gifted writer. Very few law students ever stood and cheered for an Abe Fortas opinion, but even the most conservative law students perk up when they have to read a Brennan opinion, and probably even have a Brennan quote or two that they admire.
Scalia served as the intellectual leader of the right during the Rehnquist and early Roberts courts. While he didn’t quite have Brennan’s coalition building skills (and may even have alienated some center-right jurists with his scathing dissents), the genial Scalia was a gifted ambassador for the court, who helped define what it meant to be a conservative justice in a post-Warren Court era, and even shifted the terms of the debate on several issues (his solo dissent in Morrison v. Olson -- which declared the Independent Counsel Act constitutional -- is considered particularly persuasive). If one mentions “pure applesauce” or “argle bargle” to friends who follow the news, many will get the reference. Scalia was, in short, immensely influential, and is probably the only rival to Brennan in terms of influential late-20th century justices.
Since Scalia’s death, though, conservatives have been without an intellectual leader. Kennedy certainly would not fill that role. The chief justice might have, had he been named an associate justice as was originally planned, but he is nevertheless chief justice. Gorsuch and Thomas are likely too idiosyncratic; they are more in the vein of William Douglas than William Brennan (these are admittedly fine hairs to split, but I think they are illustrative if taken for what the approximations that they are).
Judge Kavanaugh, however, could fill this role. His conservative credentials are nearly impeccable, and those concerned about his dissent in the Obamacare cases should remember Scalia joining Brennan’s opinion striking down flag-burning statutes. Additionally, he is, quite simply, one of the most brilliant individuals I have ever encountered. He is also a truly gifted writer. At Kirkland, we were instructed to make our briefs “sing”; his first drafts were legendary for already being full operas, and that was before he turned to the task of rewriting them dozens of times. Kavanaugh would arrive to the court well-respected by the other justices, as most of them have hired his clerks (which is unusual in this day and age). I suspect that in two decades, constitutional law nerds would speak of the Kagan-Kavanaugh clashes with the same reverence my generation holds for the Brennan-Scalia battles.
In short, most of the judges on this list would result in fine outcomes for conservatives. The second and third picks might even provide more of what conservatives want. But the first pick would give them what they need.