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Two Cheers for President Trump's Not-So-Short SCOTUS List

At this point, what difference does it make?

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In May 2016, President Trump released his first short list for the Supreme Court. At the time, I was cautiously optimistic about the eleven names on the list. There were two names missing from that list: Neil Gorsuch and Brett Kavanaugh. At the time, those omissions did not bother me. But it surely bothered these two judges, and their boosters. In September 2016, Trump added ten more names to the list, bringing the total to twenty-one. Neil Gorsuch was added to the list. Brett Kavanaugh was not. In January 2017, Trump nominated Gorsuch to the Supreme Court. Fast forward to November 25, 2017, President Trump added five new names to the list. Now, Kavanaugh was added to the list. At this point, it was obvious why the five other names were added: to bring Kavanaugh into the fold. And after Justice Kennedy retired in June 2018, Kavanaugh was tapped to the Supreme Court.

As of yesterday, there were (by my count) twenty-four people on the short-list. Now, President Trump has added another twenty people. We are up to 44 candidates for zero, one, or maybe two vacancies. Frankly, at this point, the list does not make a difference. If Trump wants to add someone who is not on the list, he will simply put out a new list, as he did with Gorsuch and Kavanaugh.

I will sort the twenty potential nominees by category.

First, there are 10 Trump-appointed federal judges:

  1. Bridget Bade, Ninth Circuit
  2. Stuart Kyle Duncan, Fifth Circuit
  3. James Ho, Fifth Circuit
  4. Gregory Katsas, D.C. Circuit
  5. Barbara Lagoa, Eleventh Circuit
  6. Martha Pacold, Northern District of Illinois
  7. Peter Phipps, Third Circuit
  8. Sarah Pitlyk, Eastern District of Missouri
  9. Allison Jones Rushing, Fourth Circuit
  10. Lawrence VanDyke, Ninth Circuit

Second, there are three sitting Senators:

  1. Tom Cotton, U.S. Senator
  2. Ted Cruz, U.S. Senator
  3. Josh Hawley, U.S. Senator

Third, there are four current and former members of the Trump Administration:

  1. Steven Engel, AAG for DOJ's Office of Legal Counsel
  2. Noel Francisco, former Solicitor General
  3. Christopher Landau, Ambassador to Mexico
  4. Kate Todd, deputy White House counsel

Fourth, there are two current state officers:

  1. Daniel Cameron, Kentucky AG
  2. Carlos Muñiz, Florida supreme court

Fifth, there is a category of one:

  1. Paul Clement, former Solicitor General

Several of the Circuit Court judges warrant inclusion. Others are premature. And there are glaring omissions.

From the Fifth Circuit, I heartily endorse Judges Duncan and Ho. But where is Judge Oldham? He is going to be a giant on the federal courts for decades. Judge Phipps was on the list. He has been quite impressive on the Third Circuit. Judge Matey, who is also impressive, was excluded.

From the 11th Circuit, I do not know enough about Judge Lagoa to make an informed decision. The only opinion of hers that I have read concerned the recusal motion.

From the Ninth Circuit, I have known Judge VanDyke for some time, and think highly of him. But after his contentious confirmation hearing, I am skeptical that higher office is in his cards. But Nevada might be a swing state. Same for Arizona, which I think explains Judge Bade's inclusion. I frankly do not know much about her. There are many other deserving candidates from the Ninth Circuit, including Patrick Bumatay. He has written sophisticated originalist opinions. Alas, California is not in play, and his name doesn't add anything to the diversity of the list (but Googling him would).

Why Judge Pitlyk but not Judge Walker? They were both Kavanaugh clerks who spent a brief period on the District Court. McConnell is certainly grooming Walker for the Supreme Court. Maybe the President did not want more picks from the swampy D.C. Circuit? I'm sure Mitch was none too pleased.

Judge Katsas absolutely warrants inclusion. (His arguments from NFIB v. Sebelius may win the ACA case this term.) But the most glaring omission from the list is Neomi Rao. It is painfully obvious why she was omitted: Josh Hawley tried to kill her candidacy. And he succeeded. Here, Trump has kowtowed to Hawley, and even added him to the list! Hawley has already said he has no interest in the Supreme Court. There is perhaps one possible silver lining here. Rao might be viable for a future Republican administration, as she was not tainted by the Trump list.

The most perplexing addition is Paul Clement. At 54, he is nearly two decades older than some of the other judges. By all accounts, Clement could have been added to any of the earlier lists. But he wasn't. I can think of two explanations. First, Trump really wants to nominate Clement, and simply added the other nineteen names as filler. Trump made a similar move in November 2017 to bring Kavanaugh into the fold. I find a second option more appealing: Trump is grooming Clement to be his next Attorney General if Barr has to step down. Clement is the perfect pick. He is respected by the left and the right, and could easily skate through a confirmation hearing.

At bottom, I give this list two cheers. Judges Ho, Duncan, Katsas, and Phipps are all viable selections for the Thomas seat. But we all know who will replace the Notorious RBG.

NEXT: “I’ll Take Hacking Tesla for One Million Dollars, Alex”

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54 responses to “Two Cheers for President Trump's Not-So-Short SCOTUS List

  1. How anyone could support Rao for SCOTUS after her utter inability to understand the concept of mandamus is beyond me. If your only interest is in the result, and not the reasoning that gets you there, maybe? But the ability to create rules that apply broadly is the single crucial criterion for a SCOTUS justice. Any idiot can just special plead his or her way to a preordained result.

    1. Just close your eyes and think of England.

    2. I’m srumising that after Sessions v. Dimaya, US v. Davis, and Bostock Trump has had it with justices who have the “ability to create rules that apply broadly” instead of just reflexively repaying the favor to the guy who put them on the bench.

      So, don’t expect your favorite intellectual luminary on the list to get the nod should Trump get another crack at it; instead expect the most toadyish lightweight on the list. Of course, that’s assuming Trump keeps his promise to pick only from the list. We all know by now what Trump promises are worth, right? Surely no one really expects him to keep his word at this point.

  2. Oh, part of me is hoping for SCOTUS Judge Ted Cruz. There’s such delicious irony there. Such karma… Oooh..

    Trump nominating his last rival for the GOP nomination for the Supreme Court. A Hispanic, son of immigrants, but with firm conviction. It’s delicious.

    1. It would be a fascinating confirmation hearing. Cruz is famous (infamous?) for being utterly despised by his fellow senators…with pretty much all the worst comments coming from other Republicans. So, not sure if he’d get the automatic/almost automatic rubber-stamping that Senators usually get at confirmations.

      I personally think Trump should give America the ultimate middle finger and nominate Barr for the next SCOTUS opening. If Trump wants to give ass-kissers in his second term the message that “Being a whore for me totally pays off.” . . . you simply could not find a more-shining example of this maxim than the redoubtable Mr. Barr.

      1. Nah, Barr is too old. He’s already 70. I mean, if Trump was foolish enough to nominate Barr, Democrats should take that and run to the bank with it laughing. I mean, Souter retired as a SCOTUS judge at 70. Scalia died at 79.

        Trump could nominate a judge who would be on the SCOTUS for 30 years…and instead the Democrats get one who might last 10 if he’s lucky? They should take that and run laughing.

      2. It would be a fascinating confirmation hearing. Cruz is famous (infamous?) for being utterly despised by his fellow senators…with pretty much all the worst comments coming from other Republicans. So, not sure if he’d get the automatic/almost automatic rubber-stamping that Senators usually get at confirmations.

        If he’s on the court, they no longer have to work with him on a daily basis…

        1. That’s exactly what I was thinking, along with an empty Senate seat.

        2. Okay, that’s actually a good point. “Ambassador to Outer Mongolia? Hell yes. Confirmed unanimously in less than 15 minutes, and we’re even chipping in to pay for his taxi to the aeroport.”

    2. Cruz has no convictions other than his own ego. Ask any of his Republican senatorial colleagues. As for Hispanic, he’s one of that tiny segment (Cuban Americans) which actually vote Republican. All other Hispanics would “spit him out of their mouths”.

      1. When is a minority not a minority?

        When they don’t vote the Democratic party line…

      2. [Cruz is] one of that tiny segment (Cuban Americans) which actually vote Republican. All other Hispanics would “spit him out of their mouths”.

        That’s an extreme exaggeration, and untrue. According to polling done by AP Votecast immediately after the 2018 Senate race in which Cruz defeated Great Democratic Hope Beto O’Rourke, O’Rourke and Cruz split the hispanic vote 69%/31%. This is lopsided, but 31% is a pretty big number who didn’t “spit [Cruz] out of their mouths.”

  3. “But we all know who will replace the Notorious RBG.”

    That unqualified declaration is silly, even by the standards of this blog.

    (If this were chuck-a-luck, my money would be on former Pres. Obama. But anyone who says that anyone — let alone everyone — knows is wrong and dumb.)

    1. I’d bet on not Obama, but otherwise amen.

      1. Obama would be a good choice, in a perfect world. As to his knowledge of Constitutional law he’s probably ahead of most of the people on Trump’s list (and some of the VC’ers). Of course, competence is not the kind of thing that Republicans look at.

        1. “his knowledge of Constitutional law”?

          As evidenced by what, precisely? Based on his actions during his administration, my high-school-aged son knows more about Constitutional law than Obama.

          1. I like to think he knows it, but just has no honor and ignores it for political reasons, like he gets to decide when Congress is in recess w.r.t. appointments, claims laws to create things implied a valid US debt so he could skip Congress and a separate appropriation, and immediately siccing the IRS on Standard & Poors for having the temerity to downgrade the government’s credit rating from godly to godly with a butt pimple.

            1. Yeah, disagreeing with you on the Constitution is proof that someone agrees with you and is lying.

              So, too, with being overruled at the Supreme Court.

        2. As to his knowledge of Constitutional law he’s probably ahead of most of the people on Trump’s list (and some of the VC’ers).,/blockquote>

          While I think it’s almost certainly not going to happen (if on because his apparent and entirely rational lack of interest in the position). I will concede that Obama is arguably as well suited for the Supreme Court as any president as Taft.

          Having said that, I find your characterization of his relative capabilities to be risible.

          1. I find your characterization of the black guy to be predictable.

        3. My pest service has extensive expertise in the area of entomology. Obama’s Constitutional knowledge is of a similar utility.

    2. I’ll at least name Amy Coney Barrett.

  4. Poor Joshua. Everyone and their mother made the list, yet he can’t even get a district court gig, despite him working around the clock polishing Trump’s taint. Sad!

    Time is running out Joshy-boy. Better really get in there if you’re gonna get that lifetime appointment!

    1. @ Aunt Teefah: You should start your own blog, or devote your heckling efforts to Twitter. This kind of intensely personal insult adds nothing.

      1. My bad, I hate to detract from the reasoned discourse to which readers of this site’s comments have become accustomed. Next time I’ll be sure to add a racial slur or a fantasy about killing political opponents to better-comport with the site’s standards.

        1. “fantasy about killing political opponents to better-comport with the site’s standards.”

          Threatening to kill Federal Judges is poor form — and I believe also illegal….

          1. Maybe you should try reading all of the words in context.

            A fantasy is never illegal, and the fantasy said nothing about killing Federal Judges.

            Learn to fucking read you twit.

        2. Hey looks like we found KKKirklands sock puppet account.

        3. “Next time I’ll be sure to add a racial slur ”

          “A” racial slur doesn’t cut it at this blog. Only “the” racial slur will do. And repeatedly.

      2. What is your opinion of Prof. Blackman’s intensely personal insults with respect to Chief Justice Roberts?

        What about your life makes sucking up to Josh Blackman seem attractive?

        1. I commented on that post. Perhaps you missed it. Perhaps you should have looked before insulting me. I’m sucking up to no one.

      3. Agreed, Beldar. Pres. Trump’s judicial nominees have, on the whole, been excellent. While a couple of duds have slipped through the cracks, the suggestion that he might think Prof. Blackman qualified for such a position is gratuitously offensive, and needlessly insulting.

  5. This is hugely important. Thank you for doing this comparison of the various lists, Prof. Blackman, and for your first-blush reaction to some of the new names.

    You might want to add to your post a direct link to the list itself as a primary-source document, which is here: https://www.whitehouse.gov/briefings-statements/additions-president-donald-j-trumps-supreme-court-list/.

    It’s very important to note that today’s version of the list expressly says that these are “additions to [Trump’s] Supreme Court List,” which presumably means that everyone included in the version dated November 17, 2017 (which is linked from Ed Whelan’s Bench Memos post), is still under consideration. This would include such candidates as Judge William Pryor (11th Cir.) and Diane Sykes (7th Cir.); although they’re now quite a bit longer in tooth than they were then, those were the first two names Trump mentioned as potential SCOTUS appointees (not counting his sister), back during the 2016 GOP primary debates. It would also include Sen. Mike Lee (R-UT), and his brother, Associate Chief Justice Thomas R. Lee of the Utah Supreme Court.

    And it would include Judge Amy Coney Barrett of the Seventh Circuit. Is she who you meant by your “we all know who will replace the Notorious RBG” comment, Prof. Blackman, if Justice Ginsburg should die or resign during Trump’s term? Or did you mean Clement (based on his presumed ease of confirmation by the current Senate)? Or did you mean to refer instead to Dem presidential candidate Joe Biden, who would make the choice if Justice Ginsburg survives Trump’s presidency?

    It’s also worth noting — as some critics of Trump and/or Sen. Ted Cruz may well do — that the decision by Trump to publish a definitive list, with an explicit commitment (in an accompanying press release) to choose only therefrom, was an explicit part of the quid pro quo between Trump and Cruz announced on September 23, 2016, when Ted Cruz formally endorsed Trump in a FB post that relied heavily upon potential SCOTUS appointments as a reason to vote for Trump instead of Hillary Clinton. (Some of you may recall that at the then-recently concluded GOP national convention, Cruz had called for Republicans to “vote your consciences,” to Trump’s extreme displeasure.) IIRC, back in 2016, Cruz disclaimed any interest in being added to such a list. Today, though, he tweeted that he was “humbled & deeply honored to be on President Trump’s SCOTUS list.” In any event, I count as Ted Cruz’ most significant achievement, in a career filled with many, that he got Trump committed to choosing from a list which has been effectively, and wisely, outsourced to Leonard Leo and Ed Whelan.

    1. Sen. Cruz’s experience indicates that one route to getting on the Trump list is to grovel obsequiously when Trump calls your wife a hideous pig.

      #ConservativeManhood

      #LetsFindAManForHeidi

  6. (It’s a safe bet that Trump would no longer mention his sister, even as an example of the “sort of judge” whom he might appoint.)

  7. Re this:

    I can think of two explanations. First, Trump really wants to nominate Clement, and simply added the other nineteen names as filler. Trump made a similar move in November 2017 to bring Kavanaugh into the fold.

    This is over-generous to the Orange Man, who — when first asked about SCOTUS picks before the 2016 election — couldn’t come up with the name of a single judge except for his sister. I very much suspect that it was Leo and Whelan, along with then WH-counsel Don McGahn, who wanted Gorsuch and Kavanaugh to be considered, despite their absence from Trump’s May 2016 list.

    1. I very much suspect that it was Leo and Whelan, along with then WH-counsel Don McGahn, who wanted Gorsuch and Kavanaugh to be considered

      Oh my doodness — imagine surrounding yourself with competent people and letting them do their job! Truly scandalous and utterly unacceptable behavior in any kind of leader.

      1. @Life of Brian: I wish Trump would do more of it. I’d be happiest of all, in fact, were he to abdicate immediately, and thereby delegate the remainder of his presidency, and the 2020 election, to Mike Pence.

        Unfortunately, Trump tends to grow dissatisfied with the competent people he’s hired/appointed, and then to throw them under the bus with vile personal insults. I’m concerned that there aren’t enough of them left to save him, or us; his first term has clearly been salvaged by the efforts of those who are no longer there (e.g., McGahn & Kelly); and there is a serious problem now with un-confirmed temporary or acting officials in his administration exceeding their authority. Instead, Trump tends to trust his “gut,” which is capacious but very, very stupid.

        1. So you started out by criticizing/mocking Trump for delegating, then when I pointed out how silly that was you pivoted to criticizing/mocking him for not delegating more.

          TDS is truly one of the most flexible doctrines I’ve ever encountered.

          1. I don’t see how you read the original comment as critical of him delegating. Critical of him knowing nothing about the judiciary, sure, but there is no judgment expressed or implied in allowing others to direct the pick.

            It’s entirely consistent to think that Trump is a moron and that he should therefore delegate more.

            1. @ jb: You’re exactly correct.

              @ Life of Brian: In the early 1990s, I was a partner in the Houston office of Weil, Gotshal & Manges. My New York-based partners were representing Trump’s largest creditor, Citibank, in the orderly liquidation of Trump’s so-called fortune described in this very comprehensive article:

              A lack of focus was not Mr. Trump’s only problem. The updraft in the real estate market of the ’80s turned into a headwind by the early ’90s, and more than $3 billion in loans — $900 million of which were personally guaranteed — went into default. Dozens of banks came calling and, after lengthy negotiations, a meeting was held in a large conference room in the law offices of Weil, Gotshal & Manges, the firm that represented the largest lender, Citibank. There, some 50 bankers and lawyers watched Mr. Trump sign over nearly all of his properties — the Plaza, other buildings, the shuttle, the yacht, the jet — in exchange for more favorable terms on his personal guarantees.

              The banks could have easily toppled Mr. Trump into personal bankruptcy, “but we all agreed that he’d be better alive than dead,” said Alan Pomerantz, then head of the real estate department at Weil. “We needed him to help sell all of his assets, and the deal was that as he sold off more, we’d reduce his personal guarantee.”

              In effect, the banks allowed Mr. Trump to remain solvent so that they could get the benefit of his gift for salesmanship. In exchange, the banks provided him with $450,000 a month to operate his business and cover personal expenses. …

              Trump’s appearance in the lobby of the Plaza in “Home Alone 2: Lost in New York” was an example of the kind of publicity his creditors kept Trump out of bankruptcy for, so that they could make him dance like an organ-grinder’s monkey. All of them, and all of the lawyers who represented them, were thoroughly disabused of any notion that Trump was even minimally competent as a businessman, much less some sort of (to use his later phrasing) stable genius.

              My distaste for Trump actually preceded this, though: A portion of my law practice has always been in antitrust law, and Trump was very famous in those circles for his spectacularly bad performance as the USFL’s key witness in its antitrust jury trial against the NFL, in which the jury expressed its revulsion for both Trump and NFL Commissioner Pete Rozelle by finding the NFL to have broken the antitrust law, but the USFL’s resulting damages to be $1 (tripled to $3 with punitives). Trump’s driving of the USFL into the ground was the first example of Trump’s incompetence on a national stage, and formed the basis upon which all my other views about Trump were built.

              I give Ted Cruz full credit for committing Trump to the notion of a published list of potential POTUS nominees to which Trump was definitely committed in 2016, and Trump’s outsourcing of the creation of the list to Leo & Whelan also dates back to their September 2016 quid pro quo. The immediate result was the Gorsuch nomination, which gave Trump an enormous PR bump among skeptical Republicans — so much approval that Trump has, to his credit, stuck to the outsourcing of all of his judicial nominees to Leo & Whelan. I can likewise name a handful of other decisions Trump has made in office with which I have agreed, and for which I give him credit. But giving him such credit as he’s due is by no means inconsistent with recognizing that he’s like a blind pig who occasionally nevertheless noses an acorn, or the stopped clock that’s right twice a day. He’s an idiot, unfit to hold any public office, and an unworthy vessel for the hopes and aspirations of the Party of Lincoln. When he’s out of office, he’ll return to being an inconsequential joke, and he’ll end up on the ash heap of history where he belongs.

              1. This is truly marvelous. Hearing that a bunch of Weil partners look down their noses at Trump finally brought me to my senses. I’m going to have to change my entire worldview now. Thanks so much for sharing!

                1. I would say “correctly perceived” rather than “look down their noses,” but you’re entirely welcome.

  8. Josh’s Rolodex (to use an old term) steadily grows.

  9. Another list from the absolutely positively non-partisan Federalist Sociaety.

  10. But we all know who will replace the Notorious RBG.

    Her absence from the list is all the more perplexing.

  11. Well if you think that Justin Walker – he of the lacking experience and temperament – is qualified, what about first year Jones Day associate Kathryn Mizelle?

    1. Justin Walker was rated well qualified by the ABA for his position on the D.C. Circuit.

      1. That’s true.

        As is frequently the case, the ABA was wrong.

  12. Why is anyone treating this as a big deal? We know who the Don’s consiglieres are on judicial appointments and any one of us, out of nothing more than general knowledge, could have put together at least half of this list, and possibly more, ourselves. The odds of an opening occurring between now and Inauguration Day are infinitesimal, and all this parade of mainly obvious names does is reassure people who will already vote for Trump that he will do again what he did before.

  13. “Clement is the perfect pick. He is respected by the left and the right, and could easily skate through a confirmation hearing.”

    Yeah, right. I can hear Schumer already: “Surely, we’ve got an old sexual harassment allegation lying around somewhere.”

  14. No mention of Don Willett? Bummer.