The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Five years ago today, Donald Trump released his first list of potential nominees to fill the Scalia seat:
- Steven Colloton of Iowa
- Allison Eid of Colorado
- Raymond Gruender of Missouri
- Thomas Hardiman of Pennsylvania
- Raymond Kethledge of Michigan
- Joan Larsen of Michigan
- Thomas Lee of Utah
- William Pryor of Alabama
- David Stras of Minnesota
- Diane Sykes of Wisconsin
- Don Willett of Texas
If you notice, there are three very important names missing from the OG list: Neal Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The final omission is understandable. At the time, Barrett was but a mere law professor. But the omission of Gorsuch and Kavanaugh was deliberate. These two ambitious individuals have long had aspirations for higher office. Their subsequent inclusions came through vigorous lobbying. Once Kavanaugh was added to the list in November 2017, I knew the fix was in.
At the time, I wrote in National Review that I was "cautiously optimistic" about Trump's list. I praised Trump's willingness to look beyond "coastal insularity."
Last June, Justice Antonin Scalia observed that for all the talk — and high praise — of diversity in the judiciary, the Supreme Court was lacking in a different type of diversity. All nine justices "studied at Harvard or Yale Law School," he wrote. Eight of the justices "grew up in east- and west-coast States." Only Chief Justice John Roberts (of Indiana) "hails from the vast expanse in-between." Indeed, four out of the nine justices were "natives of New York City." (My hometown of Staten Island was the only unrepresented borough.) . . .
Second, Trump did not limit his search to the usual inside-the-beltway favorites. The list includes Steven Colloton (Iowa), Raymond Gruender (Missouri), Thomas Hardiman (Pennsylvania), Raymond Kethledge (Michigan), William Pryor (Alabama), Diane Sykes (Wisconsin), Allison Eid (Colorado), Joan Larsen (Michigan), Thomas Lee (Utah), David Stras (Minnesota), and Don Willett (Texas). All these judges have served on the bench within what Justice Scalia called that "vast expanse in-between."
Critically, there were no inclusions from the D.C. Circuit. Here was my not-too-veiled comment about Judge Kavanaugh:
Third, for the first time in a generation, not a single judge from the D.C. Circuit Court of Appeals — often called the second-highest court in the land — made the Supreme Court shortlist. This is a positive development. The judges on Trump's list are less likely to view the great expanses of the United States beyond the Hudson River in the same way as that famous New Yorker cover. They are also less likely to be susceptible to the so-called Greenhouse Effect, the "judicial drift" caused by Beltway Fever. These justices will have the strongest immunity to the D.C. cocktail-hour scene, which tries to nudge judicial conservatives to the left.
Drift! Cocktail parties! How prescient. You know, I never thought it would be Justice Kagan who invited a squishy conservative to dinner parties!
Five of the eleven OG members were on state Supreme Courts. Now all but one sit on the federal courts of appeals. Judge Eid is on the 10th Circuit. Judge Larsen is on the 6th Circuit. Judge Stras is on the 8th Circuit. And Judge Willett is on the 5th Circuit. Alas, Justice Lee is not on the 10th Circuit. Judge Pryor is Chief Judge of the 11th Circuit. And Judge Sykes is Chief Judge of the 7th Circuit. All-around, an august list.