Supreme Court

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.

NEXT: Short Circuit: A roundup of recent federal court decisions

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  1. Barrett and Kethledge both have the sort of wild staring eyes that one looks for in a proper Conservative Justice. No squish there. Kavanaugh is obviously a swamp crittur politico. Roberts 2.0. No thanks. And Hardiman seems like a nice guy and Kennedy 2.0 in the making. No thanks either, but carry on being a nice guy.

    My preference would be Margaret Ryan cos it's high time we had a US Marine on the Court, and US Marines are not noted for their squishyness. But I suspect I'll have to do without.

    For entertainment, obviously Barrett would be good. Thousands of liberal heads exploding. And if she doesn't get confirmed thanks to Miss Collins (and the Red State Dems hanging tough) that'll probably help bring out the God squad in November.

    But my money would be on Kavanaugh as it's alleged he thinks Special Counsels have to be nice to Presidents.

    1. he thinks Special Counsels have to be nice to Presidents.

      Now he does. His views have evolved, as they say.

      1. So this year are we going to make it 2,344 disagreements and one agreement ?

        You're buying "swamp crittur politico" ?

        1. I don't understand what you are saying, Lee.

          Kavanaugh, as I'm sure you know, worked on Ken Starr's staff and made arguments that Clinton should have to testify and whatever. Apparently, he's changed his mind.

          Well, OK. He's entitled. But I'd probe that a bit.

          1. My point was no more complicated than "it sounds like you're not a fan of Kavanaugh either." Which would be a relatively rare point of agreement between us.

            I confess I did not study very carefully whatever blogospheric piece it was that mentioned his views on Special Counsels, but I vaguely recall that it implied that it was his experience on the Starr team that had led him to believe that SCs are not a good idea. So he may have honest views on the subject, and not be a hypocrite. Or maybe not. Either way he seems too much of a DC dinner party insider.

  2. No thanks on Hardiman; That would just be throwing away the seat, keeping the Court where it is, rather than moving it in the right direction. I mean, I like the fact that he's described as "a 2nd amendment extremist", (Which typically just means he wants it upheld.) but a justice ought properly be an 'extremist' in regards to the entire Bill of Rights.

    As for the rest, honestly they're all likely to be better than Kennedy, low bar as that might be.

  3. Hillary is not president, yea! Most Americans ought to be grateful.

  4. I prefer SCOTUS justices to have at least five years of judicial experience. As such, I don't believe Ms. Barrett has the requisite experience for the position. (I said the exact same thing regarding Ms. Kagan in 2010.)

    1. This is an appealing argument, since it would have kept John Marshall and Roger Taney off of the Court. Not to mention William Douglas and Earl Warren. Not to mention Felix Frankfurter.

      (I see from Wikipedia that Thurgood Marshall only served *four* years on a lower court, not five.)

      On the other hand, Kennedy and Stevens were seasoned appellate judges before getting on the Court, and it didn't make them particularly sensitive to the limits and responsibilities of judicial power.

      1. My comment was solely about judicial experience. How justices decide cases is beyond the point. Five years on the federal bench is one of my minimum qualifications to join SCOTUS. The others are a clerkship with a federal appeals court, a large quantity of scholarly works, and four years of full-time practice within the last seven years (excluding current judges). In my opinion, the last requirement is very important because it rules out both pure academics and bureaucrats. I still cringe every time I think about the curious case of Matthew Petersen.

        Quite frankly, I'd also like a justice who has never worked for the Justice Department. I think it's about time that we get a justice who is strong in the area of criminal defense.

        1. I too think more judges with a defense mindset would be appreciated.

          But, as noted, your rule would have denied a seat to a range of justices historically seen as greats.

          There is room for justices with other experience and Kagan's experience in the Justice Department of two presidents and as a law school dean that bridged the divide between two ideological sides etc. provided such experience. BTW, Kagan might have had more judicial experience, but Bill Clinton's nomination of her to a lower court was filibustered.

          1. I don't agree with post hoc arguments for a nominee's qualifications (e.g. they were good justices so they must have been good choices).

            Regarding Kagan, she would still have been unqualified under my paradigm even if her Clinton-era appointment was approved. Immediately prior to appointment to her nomination, she served as the solicitor general for a mere fourteen months preceded by ten years of academia.

          2. FWIW, William O. Douglas could legally reason his way out of a paper bag and his reasoning does not influence any important doctrines despite a super-long tenure, and one reason for that might be that he was unqualified for the position.

            Having said that, Kagan is clearly good at the job and so was John Marshall, and they demonstrate your point nicely.

  5. I'm just waiting to see what kind of a circus the Democrats in the Senate are going to put on during confirmation hearings And will all of the wild ranting and attempted character assassinations from the left-wing wacko groups have exactly the opposite of the desired effect and energize GOP voters in November. And then there is the media - which just might qualify as a left-wing wacko group this year; we have already seen the LA Times throwing out demonstrably false claims about Amy Conan Barrett's academic work, and I fully expect the NYT and WaPo to follow suit whenever we know who the nominee is. Every time I hear complaints about Trump (who is admittedly tactless, dishonest, and boorish) debasing the media, I laugh my ass off. The media does an excellent job debasing itself without any help from Trump.

    1. "To crush your enemies. See them driven before you. And to hear the lamentations of their women. "

      Amy Conan Barrett

      She's sounding better and better.

    2. Once again, the important thing is sadness on the other side, and further stoking your hatred of them.

      The Dems have already lost this one, and yet you cannot look away.

      1. When my straight guy sets me up, I deliver the punchline, that's all.

        You don't have to laugh at my jokes, but if you're going to be that po faced, you may need to be thinking up another name. "Miss Scold" perhaps ?

        1. More about DJDD's long post only on libs libs libs than you comparatively harmless one-liner.

          1. On a post about the implications of a conservative victory, if you can only think about how liberals' evil continues, that's a rough way to go through life.

            Scold, satire, gadfly. I calls them like I sees them.

      2. "Once again, the important thing is sadness on the other side, and further stoking your hatred of them."

        Its still a side benefit.

        The important thing is Barrett is the most conservative leading candidate. So we want her.

  6. Judge Pryor was Jeff Sessions' principal deputy as Alabama AG, and he was Sessions' hand-picked successor when he left that job for the U.S. Senate. As Alabama AG, Judge Pryor took over from Sessions the proceedings to remove Judge Roy Moore from the Alabama Supreme Court the first time that happened, when Judge Moore flouted and defied, and urged citizens to support him in flouting and defying, the un-appealed and un-stayed mandate that had issued from the Eleventh Circuit (where Judge Pryor now sits) in a Ten Commandments case.

    Judge Pryor is also closely associated with Bush-43, who very famously and provocatively recess-appointed Pryor to the Eleventh Circuit before the Gang of 14 deal eventually resulted in his regular-order confirmation.

    I suspect Judge Pryor's ties to Sessions, who's been in constant bad odor with his boss since early 2017, and to Bush-43, had more to do with his absence from any short lists. And it's a damned shame, because he'd be a very fine pick for the SCOTUS. Dems will call any GOP nominee a racist, regardless of the evidence or lack thereof.

  7. Pryor had to hire private security guards after receiving death threats for his efforts to remove Judge Roy Moore from the Alabama Supreme Court. I included quotes from his closing argument to the Alabama judicial ethics panel here:

    The stakes here are high, because this case raises a fundamental question. What does it mean to have a government of laws and not of men? ....

    Every one of these citizens, and thousands more who come before the courts, must know that the final orders of the courts will decide their disputes, even if that citizen disagrees with that order. Someone has to lose, and virtually always, the losing litigant thinks he was right and the court was wrong. This court must provide the answer that no citizen, whether rich or poor, powerful or weak, is above the law.

    As I mentioned a moment ago, the judicial branch of our government, both our federal government and our state government, as human institutions, are imperfect. They sometimes make mistakes. Even terrible ones. We correct some of those mistakes on appeal. Sometimes the appeals court, even the Supreme Court gets it wrong, too. Fortunately, our Constitution gives us remedies.

    I stand by my remarks from 1997 that we're called by God to do what is right. But we're called to exercise our constitutional rights in fulfilling his will.

    [Quote continued & concluded in next comment:]

  8. We can elect lawmakers, legislatures, to change the law. We can elect presidents to appoint judges faithful to the law. We, the people, can even amend the Constitution itself. That is what our nation did when it abolished slavery with the 13th Amendment, which overruled the abominable decision of the Supreme Court in Dred Scott versus Sanford. But the refusal of a party to comply with a court order, whether the court order is right or wrong, is not a remedy provided by the Constitution.

    Because Chief Justice Roy Moore, despite his special responsibility as the highest judicial officer of our state, placed himself above the law, by refusing to abide by a final injunction entered against him, and by urging the public through the news media to support him, and because he is totally unrepentant, this court regrettably must remove Roy Moore from the office of Chief Justice of Alabama. The rule of law upon which our freedom depends, whether a judge, a police officer, or a citizen, demands no less.

    I agree with Prof. Adler that Judge Pryor "has shown himself willing to stand up for the rule of law at great personal and political risk" ? and heroically so.

  9. At one point I had, but can no longer locate, a transcript of then Alabama AG William Pryor's cross-examination of Judge Roy Moore. It was masterful, a classic example of handling a pompous but deeply stupid blow-hard and scofflaw, one of the greatest disgraces to the legal profession ever to draw breath. Judge Pryor, in other words, was a very fine trial lawyer before taking the bench.

  10. Currently I would not protest any of these choices except Kavanaugh, though he would encourage me to make a loud one. His views of eminent domain, the Obamacare individual mandate, and the Fourth Amendment are more than enough reason for me to call the senators from my state to voice my opposition. If he is the choice, I'm likely to also call the Majority Leader and other senators as well.

    1. Well, don't hold back. What are his views on eminent domain, the Obamacare indiv mandate and the Fourth Amendment? And, to the extent you can, what are your cites for your beliefs about his views?

  11. PLEASE:
    No Circuit Court judges (I may be willing to make an exception for the chick from the Military Appeals court--plus we'd then have "Meg Ryan" as a SCOTUS justice, which is sorta cool).
    No Harvard or Yale connection.
    At least SOME experience as a trial lawyer.
    Someone who is something other than a Catholic or a Jew (I am a Catholic, FWIW)


  12. Much is made of the fact that Barrett has less than one year as a federal judge. However Elena Kagan had no experience as a federal judge. She did have about a year as Solicitor General just prior to her nomination but had been criticized for that nomination because of her lack of courtroom experience.

    Including Kagan there have been 41 members of the Supreme Court without prior judicial experience, including Louis Brandeis, John Marshall, Felix Frankfurter, William O. Douglass, Earl Warren, Byron White and William Rehnquist.

  13. Please don't hand-waive over the Fortas filibuster, it makes you appear to be a partisan hack and merits explanation, especially since you're right. The Fortas filibuster was bipartisan, with 10 Republicans voting for cloture and 24 against with 35 Democratic senators voting yes and 19 voting no. With the abstentions, there wasn't enough votes to get to a majority. This was in spite of support from both the majority leader and minority leader.

    The Fortas nomination was the biggest blunder in judicial nominations history. Handing Warren's seat to his arch nemesis Richard Nixon. The confirmation hearings also likely lead to discovery of $20,000 a year contract from Louis Wolfson to Fortas.

  14. Prediction/betting sites:

    Predictit: Kavanaugh

    Betdsi: Barrett

    LexPredict: Barrett

    According to Josh Blackman, LexPredict got the Gorsuch nomination correct.

  15. But my money would be on Kavanaugh as it's alleged he thinks Special Counsels have to be nice to Presidents.

    Thank you.

    Y'all may pay my winnings to a charity of your choice.

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