The Volokh Conspiracy
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Closing in on the Next Supreme Court Justice (Updated)
President Trump will soon name his second pick to the Supreme Court
President Trump is scheduled to announce his nomination to replace Justice Anthony Kennedy on the Supreme Court Monday evening. According to press reports, rollout packages have been prepared for four potential nominees, all of whom sit as judges on U.S. Courts of Appeals: Brett Kavanaugh (D.C. Circuit), Raymond Kethledge (6th Circuit), Amy Coney Barrett (7th Circuit), and Thomas Hardiman (3rd Circuit). All four potential nominees are on Trump's list of 25 potential SCOTUS nominees, and all four are highly qualified jurists of the sort the President said he would appoint.
While the situation is in flux, Judge Kavanaugh appears to be the current favorite (though the voting at FantasySCOTUS would suggest otherwise). This makes some sense. Not only did Judge Kavanaugh clerk for Justice Kennedy, he has spent the past twelve years contending with the administrative state on the D.C. Circuit, the court where most challenges to major federal regulations are heard. He also has Executive Branch experience and worked for Independent Counsel Ken Starr.
Judge Kavanaugh's opinions are often influential, particularly his dissents, several of which have been vindicated by the Supreme Court, including opinions on the constitutionality of the Public Company Accounting Oversight Board (PCAOB) and legal challenges to EPA regulations on mercury and greenhouse gas emissions. As a justice, Kavanaugh would likely have a significant influence on the future of administrative law. (For profiles of all the shortlisters' views of administrative law, see this post at the Yale Journal on Regulation's Notice & Comment blog.)
For those interested, here's a lecture Judge Kavanaugh gave at CWRU on the D.C. Circuit at the Case Western Reserve University School of Law. A published version of the lecture is here. Beyond consulting his opinions, those interested in Judge Kavanaugh's thoughts on various legal issues may want to consult this Minnesota Law Review article on the separation powers and this Harvard Law Review piece on statutory interpretation. J.D. Vance made the case for a Kavanaugh nomination in the WSJ here, and Ed Whelan rebutted some erroneous attacks on Kavanaugh on Bench Memos here and here.
Judge Kethledge is another former Kennedy clerk in contention. For the last decade he has been a judge on the U.S. Court of Appeals for the Sixth Circuit. Prior to that he worked in private practice and for Senator Spence Abraham. One of the biggest differences between Kethledge and Kavanaugh is in the content of their judicial records. Whereas Judge Kavanaugh has consumed a steady diet of administrative law cases, Judge Kethledge has heard a wider range of cases, including the sorts of business law disputes and tort litigation that occupy substantial portions of federal dockets. Whereas Judge Kavanaugh has spent most of his professional career inside the beltway, Judge Kethledge has mostly worked in his home state of Michigan, which is also where he went to law school.
Judge Kethledge is widely regarded as an excellent writer (and with good reason). His opinions are a joy to read and often reflect common sense - such as the idea that it's unreasonable for a court to sanction a class-action settlement in which the lawyers get millions while unnamed class members get nothing of value, that it's not unlawful racial discrimination to run credit checks on job applicants, or that a benefit claimant's spouse is part of his "family."
Judge Kethledge co-authored a book on leadership the value of solitude and delivered a recent lecture outlining his views on administrative law (published in the Vanderbilt Law Review). He's also a favorite of my co-blogger Orin Kerr, who corrected distortions of his record here and here.
Judge Barrett is somewhat of a dark-horse candidate, if only for her relatively short stint as a federal judge. Whereas Judges Kavanaugh and Kethledge were appointed by President George W. Bush, Judge Barrett was an early Trump nominee, and was only confirmed last year. As a consequence, her judicial record is somewhat thin: Nine reported cases by my count, all but one of which were unanimous. Substantial judicial experience is not a requirement for the Supreme Court, even if it is the current norm. Justices Kagan, Rehnquist, Fortas, White, Powell and Frankfurter, along with a few dozen others, were confirmed without ever having spent a single day as a judge.
Prior to joining the bench, Judge Barrett was a professor at the University of Notre Dame Law School. As a consequence, she has a longer record of published law review articles than other potential nominees, most of which may be found here. She also spent six years (serving two terms) on the Advisory Committee on the Federal Rules of Appellate Procedure, and clerked for Justice Scalia.
An impressive intellect, Judge Barrett is the favorite of many conservative activists (as discussed in this NYT piece). Ramesh Ponnuru made the case for her here, and her Notre Dame colleague Rick Garnett offered this powerful endorsement. As with other potential nominees, Judge Barrett has been the subject of false claims, one of which Ed Whelan rebuts here.
Most reports indicate Judges Kavanaugh, Kethledge and Barrett are the top three contenders, but there are indications Trump is also considering Judge Hardiman, who was reportedly the runner-up behind Neil Gorsuch to replace Justice Scalia. He's seen as more of a populist or "blue-collar" choice than the others, if only for his lack of "elite" academic credentials and Supreme Court clerkship, but do not sell him short. (See David Lat's profile here.) Like the others, he is a well-respected jurist and has a long and distinguished judicial career.
Alone among the four reported finalists, Judge Hardiman has experience as a trial court judge, having served just over three years as a federal judge in the Western District of Pennsylvania. He also has the distinction of having been confirmed unanimously by the Senate, twice. He is seen as a staunch defender of Second Amendment rights and is apparently a favorite of Trump's sister, Judge Maryanne Trump Barry.
Beyond the four discussed above, Trump also reportedly interviewed Sixth Circuit Judges Amul Thapar and Joan Larsen, two more solid potential picks. Both will remain potential nominees for future vacancies, should any occur.
One judge conspicuously absent from the short-list this time around is Judge William Pryor of the Eleventh Circuit. I suspect this is because Judge Pryor was seen as more difficult to confirm than the others. Where as most potential Supreme Court nominees are circumspect about their views of Roe v. Wade, Judge Pryor once called Roe the "worst abomination in the history of constitutional law" and refused to disavow this sentiment when he was first nominated to the federal bench by President Bush. this caused Senator Susan Collins (and other pro-choice Republicans) to vote against his confirmation, and could make him a tough sell today.
It's perhaps ironic that Judge Pryor's candor and integrity would make him unconfirmable given concerns that the next Supreme Court nominee be willing to stand up for the rule of law -- and against President Trump -- should the need arise. After all, Judge Pryor -- more than any other judicial nominee of either party in recent memory -- has shown himself willing to stnad up for the rule of law at great personal and political risk, as when he led the charge to remove Chief Justice Roy Moore from the Alabama Supreme Court for defying a federal court order.
In all likelihood, Trump's nominee will be confirmed, albeit by a slim margin. Republicans have a slim majority in the Senate and any of the four above-mentioned possibilities are likely to get a few Democratic votes. A filibuster is off the table -- which is fitting because the filibustering of judicial nominations was never really a thing. Partisan filibusters had not been successful until Senate Democrats tried it in the 2000s and did not last after Republicans responded in kind. (See also here.) The first-ever cloture vote on a Supreme Court nomination was in 1967, and it only happened three more times before 2008. Abe Fortas is the only Supreme Court nominee to be blocked by filibuster, and his was quite the special case.
As noted at the outset, Judge Kavanaugh appears to be the favorite at the moment, but things are still in flux. Even if a tentative decision has been made, Trump could change his mind. In any event, so long as the President stays on schedule, we'll know the name of the next Supreme Court nominee by Monday evening, and that individual is almost certain to join the Supreme Court later this fall.
Update: The NYT reports that Senate Majority Leader Mitch McConnell has counseled the White House that it would be easier to confirm Judges Kethledge or Hardiman than Judges Kavanaugh or Barrett. According to the report, Senator McConnell believes Judge Kavanaugh's extensive paper trail could slow down the process and enable Senate Democrats to prevent confirmation prior to the start of the next Supreme Court term in October. The article also notes that Senator McConnell had preferred Judge Thapar for the vacancy, but has concluded the Administration is unlikely to nominate Thapar at this time.
