The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Ten days ago I blogged about President Trump's 44-person not-so-short list. At the time, I gave it two cheers. Ten days later, this list seems very important. Here, I will try to narrow down the list in light of Justice Ginsburg's passing.
First, I think it is safe to say this nominee has to be a woman. President Bush initially wanted to replace Justice O'Connor with Harriet Miers, but that nomination blew up; he defaulted to a man, then-Judge Alito. On the 44-person list, there are twelve women. A second factor is age. Lifetime appointments last for a long time. I imagine Trump would want to go as young as possible on this list. Third, Trump may consider how the Judge fared before the Senate Judiciary Committee, and on the floor vote. Fourth, Trump may also consider geography as a factor.
I have listed the twelve women on the list, with their age, committee vote, and floor vote (Please email if I messed up any of the numbers).
- Bridget Bade: Ninth Circuit (AZ), 54, 17-5, 78-21.
- Amy Coney Barrett: Seventh Circuit (IN), 48, 11-9, 54-42
- Allison Eid: Tenth Circuit (CO), 55, 11-9, 56-41
- Britt Grant: Eleventh Circuit (GA), 42, 11-10, 52-44
- Barbara Lagoa: Eleventh Circuit (FL), 52, 18-4, 80-15
- Joan Larsen: Sixth Circuit (MI), 51, 11-9, 60-38
- Martha Pacold: Northern District of Illinois, 41, 18-4, 87-3
- Sarah Pitlyk: Eastern District of Missouri, 42, 12-10, 59-44
- Allison Jones Rushing: Fourth Circuit (VA), 37, 12-10, 53-44
- Margaret Ryan: U.S. Court of Appeals for the Armed Forces (VA), 56 (Voice Vote)
- Diane Sykes: Seventh Circuit (WI), 62, 14-5, 70-27
- Kate Todd: deputy White House counsel (I found a report that she graduated HS in 1992, which would make her about 46)
Now, the White House would have to start making cuts. First, the list can be culled on certain non-jurisprudential factors. For example, age. Some are too old. I have long been a fan of Chief Judge Sykes, but I think her time passed. Others are too young. Judge Rushing and others will have their shot in a few years. Another non-jurisprudential consideration might be electoral support. For example, Judge Lagoa might a boost for Florida voters, and Hispanic voters nationwide. Judge Barrett, a well known former professor at Notre Dame, would excite the Catholic vote.
There are, of course jurisprudential factors. I think all of the names on the list have already been vetted on this front. They will all be able to talk the talk about originalism and separation of powers. There are no surprises on this front. Of course, vetted jurisprudence does not always lead to predictable results. See Justice Gorsuch in Bostock.
Next, there is what I call the "solid" factor. Is this person "solid"? One way to measure a person's solidness is by looking at their opinions. Some of these judges have been on the bench for a very short time. For example, Judge Lagoa was confirmed in December 2019. Judge Barrett was confirmed in November 2017. Others have a longer judicial experience. Judges Eid and Larsen spent several years on their state Supreme Courts. It is harder to measure how "solid" a judge is without studying their opinions. In the absence of a given record, we are left relying with people vouching for the judge. Whenever I sometime tells me, "they're solid," my response is "prove it." No more Souters.
Another critical factor is a Judge's willingness to fight. Justice Gorsuch's confirmation hearing was fairly calm. Justice Kavanaugh's hearing was like World War III. The nomination to fill the Ginsburg seat will be Armageddon. Critics will destroy this person's reputation, family, and beliefs. We need a Justice who can stand up to brutal attacks and be willing to return fire. Judge Barrett proved her mettle when Senator Feinstein attacked her "dogma." And, more recently, Judge Lagoa stood up against an attempt to disqualify her in the Florida disenfranchisement cases (See here and here). She also joined Chief Judge Pryor's concurrence, which resisted liberal virtue signaling. From these limited experiences, she showed a backbone.
There is a related factor: does the nominee have an army of surrogates willing to go to bat for them. Judge Kavanaugh's clerk network mobilized at every juncture, and was able to present a unified front in the media. It was a remarkable show of force. I do not know if Judge Lagoa has had the time to build that network. Judge Barrett has been on the bench a short while, but the Notre Dame network runs deep.
There is one final factor to consider. There is no guarantee this nominee ever gets confirmed: she may become the next Merrick Garland. There is a stigma to having been rejected. Just ask Robert Bork or Harriet Miers. It is not easy to live with that defeat. No one wants to be rendered Persona Non Garland. Any nominee must be willing to walk into the slaughter, knowing they may get slaughtered.
May the odds ever be in their favor.