SCOTUS front-runners Amy Coney Barrett and Brett Kavanaugh.
Photo: Dennis Brack/Bloomberg via Getty Images
Late last week the president told reporters he would name his nominee to succeed Anthony Kennedy on the U.S. Supreme Court on Monday, July 9, shortly before leaving for Europe for meetings with NATO allies and then with Vladimir Putin. It is, to put it mildly, a big, big decision that will almost surely trigger a loud and divisive confirmation fight and, assuming Republicans win it, a major change in the balance of power on the Court.
So unsurprisingly, there’s already massive speculation about Trump’s choice. What makes it all a bit easier than is usually the case is that the 45th president put together an official list of 25 SCOTUS prospects (issued last November) who have been vetted by the conservative legal activists of the Federalist Society and the Heritage Foundation. The integrity of that list has been extremely important to Trump’s relationship with the conservative movement and particularly with conservative Christian leaders. It is very unlikely he will even think about going beyond the list (despite Senator Susan Collins’s suggestion that he expand it to include a pro-choice option, which is even less likely since it would be immediately denounced as a huge betrayal by the anti-abortion lobby that gave Trump crucial backing in 2016).
But given the vast amount of time conservatives inside and beyond the administration have had to peruse the list, and the speed with which confirmation needs to proceed if the new justice is indeed going to be approved before the next SCOTUS term begins in October, a shortlist has probably been in place for months. Trump himself has said he’s got somewhere between five and seven names in mind (depending on the particular moment he spoke), “including two women.” Two very confidently expressed “shortlists” have come from Fox News (Brett Kavanaugh, Amy Coney Barrett, Amul Thapar, Joan Larsen, and Raymond Kethledge) and from The Weekly Standard’s Fred Barnes (the same list without Larsen and with Thomas Hardiman).
All six of these “most mentioned” SCOTUS prospects are, of course, from the White House list of 25, which means they have been carefully pre-vetted to detect any heresy from conservative legal orthodoxy (including the belief that the 1973 Roe v. Wade decision legalizing abortion was an abomination from a constitutional if not a moral point of view). It is a safe bet that none of them would arouse the kind of conservative backlash that, for example, met George W. Bush nominee Harriet Myers, forced to withdraw on purely political grounds before she even reached confirmation hearings. They are all relatively young by SCOTUS standards, ranging in ages from 46 (Barrett) to 53 (Kavanaugh), reflecting the conservative/Trump desire that this appointment place a stamp on the Court for decades to come. And so far as we know at this point, all six are free of the kind of personal or professional skeletons-in-the-closet that have ensnared some SCOTUS nominees in the past (including, most notably, the sexual harassment allegations that nearly brought down current Justice Clarence Thomas).
Most significantly, all six shortlist members are currently on the U.S. Court of Appeals, which means (a) they are deemed at least minimally qualified for SCOTUS and (b) they have already successfully been through the Senate confirmation process.
But they all bring certain strengths to the table in terms of confirmation politics. Here are some ways to look at them:
The Kennedy clerks. Like Justice Gorsuch, Kavanaugh and Kethledge once clerked for Anthony Kennedy, which makes it possible for Republicans to say with a straight face that either would be a suitable successor to the retiring Justice. That’s superficial, of course, since if there was any significant chance either would follow Kennedy’s footsteps on abortion or same-sex marriage, they would have never made the list to begin with.
The judicial vets. Kavanaugh, Kethledge, Hardiman, and Thapar all have extensive federal judicial records. Kavanaugh was confirmed as a circuit court judge in 2006; Kethledge made the same leap in 2008. Hardiman became a district court judge in 2003, and a circuit court judge in 2007. Thapar was confirmed as a district court judge in 2007, though he didn’t joint the Court of Appeals until last year. None of these four men is likely to pull any big surprises.
The GOP pols. A political background can be a mixed blessing for a SCOTUS candidate, but when your party is in charge of the Senate, it’s probably a net positive. Kavanaugh could be a lightning rod, though: he was a principal aide to Ken Starr during the investigation of Bill Clinton, and then spent five years in the West Wing serving George W. Bush, first as legal counsel and then as staff secretary. Kethledge worked for the Senate itself under former Senator Spencer Abraham.
The Women. Southern Baptist spokesman Russell Moore’s description of Donald Trump in 2016 as having the “attitude toward women … of a Bronze Age warlord” seems harsh but fair. That same year Trump promised he’d use his Supreme Court picks to deny women the reproductive rights they’ve enjoyed since 1973. As conservative intellectual Ramesh Ponnuru notes, putting a woman on the Court at this crucial moment might improve what is otherwise not an especially good look:
[I]t cannot be good for conservatism that all three women now on the court are liberals. If Roe v. Wade is ever overturned — as I certainly hope it will be, as it is an unjust decision with no plausible basis in the Constitution — it would be better if it were not done by only male justices, with every female justice in dissent.
No wonder Trump has gone out of his way to make it clear there are women on his shortlist. Actually choosing Barrett or Larsen for the Court would matter a whole lot more than this gesture.
The person of color. For parallel reasons, Trump might want to choose a nonwhite SCOTUS nominee. His shortlist does include one minority member, Amul Thapar, an Indian-American who would be the first Asian-American on the Court (he would also, incidentally, help maintain the Court’s Catholic majority). Thapar’s appointment would have the added advantage of ensuring that his Senate sponsor Mitch McConnell left no stone unturned in securing his confirmation.
The Relatable. Supreme Court justices are by definition members of a superelite, so it’s not like Trump has the option of choosing a nominee who would look right at home hooting and jeering at a MAGA rally. But there are two people on the shortlist who did not attend Ivy League law schools. One, Hardiman (a Georgetown Law grad), was the first person in his family to attend college. The other, Barrett (a Notre Dame Law School graduate) has the unusual distinction among judges of having seven children. She is also the most overtly religious of the shortlist members, and might be appealing to Republicans as someone who can bait liberals into remarks that sound ostensibly anti-Catholic, which arguably occurred during her recent circuit court confirmation hearings.
Outside the shortlist. It’s possible, of course, that Trump will choose someone from his larger list who’s not on this speculative shortlists. One of the two names heard the most often is William Pryor, who as Jeff Sessions’s successor as attorney general of Alabama back in the 1990s once called Roe v. Wade “the worst abomination in the history of constitutional law.” (On the positive side, Pryor helped remove Roy Moore from his position as chief justice of the Alabama Supreme Court over his defiance of federal court orders). The other is current U.S. Senator Mike Lee of Utah, who like Pryor might have a problem with harsh and outspoken rather than subtle if certain opposition to abortion rights.
Intangibles. Since we are talking about a Trump appointment here, it’s possible factors that matter most to POTUS would loom large in presidential interviews, such as looks, “strength,” obscure connections to Trump himself (one of Hardiman’s assets is that he serves on the same circuit court as Trump’s older sister, Maryanne Trump Barry), or a superior ability to flatter or otherwise magnify the presidential glory. That’s not to say he’s going to pull a surprise. In the matter of keeping his judicial promises to conservative activists, Trump has been uncharacteristically disciplined. And he knows this is one appointment he has to get right.