On May 18, 2016, Donald Trump Released His First SCOTUS Shortlist

Know who wasn't on the OG list? Gorsuch, Kavanaugh, and Barrett.

Five years ago today, Donald Trump released his first list of potential nominees to fill the Scalia seat:

1. Steven Colloton of Iowa
2. Allison Eid of Colorado
3. Raymond Gruender of Missouri
4. Thomas Hardiman of Pennsylvania
5. Raymond Kethledge of Michigan
6. Joan Larsen of Michigan
7. Thomas Lee of Utah
8. William Pryor of Alabama
9. David Stras of Minnesota
10. Diane Sykes of Wisconsin
11. 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.

Comments

[Rev. Arthur L. Kirkland]

No Ted Cruz?

Prof. Volokh must have been crestfallen.

[DaivdBehar]

Trump got played by the Swamp lawyers, all the way. He should have fired the entire FBI, DOJ, and State Department on Inauguration Day, 2017. His new FBI should then have arrested Mueller and Pelosi, roughed them up, and thrown them in federal stir, for trying to reverse theresult of the 2016 election. He should have excluded all Ivy indoctrinated, big government biased, lawyers from that list, and appointed non-lawyers to the Supreme Court. Kids from Life Skills would have resulted in an immediate upgrade in the intelligence of the decisions and in the clarity of the writing.

[Dr. Ed 2]

While the question of "and who shall guard the guardians" was never answered, the presumption was that they would be above ambition.

I find this comment about Gorsuch & Kavanaugh to be disturbing...

[JasonT20]

I find this comment about Gorsuch & Kavanaugh to be disturbing…

Same here. You don't expect people that will rise to the level of consideration for SCOTUS to be without very high confidence in their abilities, and having a desire to reach that level is also expected. But to think that someone would have a level of ambition for it to make it worth commenting on, I would almost consider that disqualifying. For all public servants, the people should plausibly be able to feel that a person has a sense of public duty that at least matches their own ambition before we entrust them with power.

But we should hold judges to an even higher standard than that. We should be as certain as we can be that they are looking to serve the public interest by objectively applying sound principles of law and justice. There should be no significant worries that they are looking for prestige, financial gain, or power for its own sake or to impose their own agenda or ideology on others. Someone that is motivated to be on SCOTUS because they want their political and legal ideas to be the law of the land is not fit to be a judge. They should try and be in Congress instead.

It might sound naive that you could even find people with the qualifications to be a federal judge that would be that neutral and objective, but that is the ideal to strive for, at a minimum. The problem is that presidents and Senators will obviously want to make their mark on the federal judiciary and tilt it in the direction that they believe serves their interests and/or ideology.

It isn't a fully formed proposal, but I would suggest completely revamping the appointment process for the federal judiciary. It would likely take an amendment to implement, thus, I don't expect it to happen, but at this point, that is what is really needed.

First, I would do away with lifetime appointments. Instead, I would go with long terms. Probably 10 years for lower courts. Judges could be reappointed or not at the end of their terms. The President would submit nominees as openings occurred as is currently the case.

Second, I would make SCOTUS seats 18 years, and fix the number of Justices at 9. The seats would be staggered by 2 years so that each presidential term would have at least two vacancies to fill. That makes it predictable when seats would be open, other than the following. When a Justice retires or otherwise leaves office before the end of their term, the replacement would serve out the remainder of that term, not start a new clock. And Justices could not be reappointed to the Court unless they had served less than 9 years of a term.

Third, I would actually increase the requirement for consensus on approval from the Senate for all judges to two-thirds. However, I would put a time limit on the Senate acting on a nominee (something like 2 months, but the Senate, by majority vote, could extend the deadline by 1 month if they wanted more hearings or something). If the Senate has not voted yea or nay by then, the nominee would be seated for the remainder of the current Congress. (Like recess appointments, but without Congress having to be in "recess", since that is a pretty meaningless thing now. Btw, I would apply this rule for all appointments, including executive branch positions. The Senate can give its advice and consent or not, but not sit on a nomination indefinitely, holding up the functioning of other branches of government.)

[Brett Bellmore]

I think the real problem with the federal judiciary has been that its members are chosen and approved by federal office holders.

Famously, no man should be the judge in his own case. Is it really that much better that a man, (Or a level of government.) should nominate and confirm the judge in his own case?

This is what has led to the vast expansion of federal power: A largely supine judiciary chosen specifically for its willingness to let the federal government claim new powers, and escape restrictions.

This problem was somewhat moderated prior to the 17th amendment, because confirmation required the votes of people who were, at least in theory, state officers, and even if elected to federal posts, at least had to worry that, in extremity, the state legislature might reclaim its power over them.

I've suggested that, should we do a rewrite of the Constitution, we address this deficiency: Significant parts of the Senate's power, including confirming appointments and ratifying treaties, should be given to a new body, composed of elected STATE officials.

These officials would show more concern for the states' prerogatives, because most of the time they'd be exercising those powers themselves.

[Leo Marvin]

Indeed, four out of the nine justices were "natives of New York City." (My hometown of Staten Island was the only unrepresented borough.)

Having lived briefly in Staten Island -- at one time or another I lived and/or worked in every borough but the Bronx -- I've always assumed New York and New Jersey fought a war over who would get Staten Island, and New York lost.

[DaivdBehar]

Funny.

[AmosArch]

The diversity we really need is diversity of school. Harvard and Yale aren't the only colleges on the planet.

[Rev. Arthur L. Kirkland]

I will mention that when Democrats are selecting nominees for the new seats on the Supreme Court.

[buckleup]

What new seats, that's DOA. And Breyer is not leaving. This court is going 7-2 Artie.

[bernard11]

I would say that diversity of experience is what is important.

That may well correlate with diversity of school. As anon-lawyer, it does seem to me that there is a sort of "federal judge" track that possibly doesn't serve us well.

[AmosArch]

Well whatever it is I'd take someone who climbed the ladder from a small state school and/or had a significant nonlegal career before differently shaded East Coast Ivy clones.

[David Welker]

The theory that judges REALLY want to go to cocktail parties is kinda weird. The theory that they want to go much so that they would allow invitations to influence their decision-making is even weirder.

Such events just do not sound that appealing.

I don't think this theorizing has much going for it.

[CommentMonkey]

Seriously. It is hard to imagine being anything but relieved to be left off the list for the cocktail party circuit. Of the various explanations for the leftward drift of many nominally conservative Justices over time, "wanting to get invited to cocktail parties" has always struck me as the least plausible - a lazy bit of pop psychology masquerading as insight.

[LawTalkingGuy]

I always thought it was a shorthand for general social acceptance. Where the assumption is that going to “cocktail parties” is how you socialize in Washington. But the main idea is that constantly making conservative rulings in a changing society will eventually lead to social ostracism. Therefore judges might drift left to (somewhat) keep up with changing social mores and not be complete pariahs. Even if you don’t ever go to cocktail parties or galas you still might find you have less and less friends and acquaintances willing to stick around in all kinds of settings.

Probably still lazy pop-psychology, though.

[Brett Bellmore]

That's how I understood it: Not literally cocktail parties, but instead acceptance by one's social circle.

Though I think these days there's an element of fear involved, too: These people have homes, and families, and not in the witness protection program, either. Nobody has to actually speak the words, "I know where your children go to school.", it's understood.

They've had mobs literally clawing at their doors in the last few years, and mobs camping out on people's front lawns or accosting them in public is happening with increasing frequency.

That has to weigh on their minds at some level.

[LawTalkingGuy]

That applies to liberal judges too though. In fact one judge had her kid murdered by a psycho Men’s-Rights activist and Sotomayor was on his hit list. But I don’t see Sotomayor going full MRA anytime soon.

[DaivdBehar]

That murderer was a lawyer, of course. He killed the wrong guy, the idiot.

[DaivdBehar]

Another reason to get out of Washington. Go where Marxist physical intimidation is not tolerated, and where crime victims are not prosecuted for defending themselves by the toxic lawyer profession. This profession is the mortal enemy of the nation, and must be crushed. All PC, all Marxist intimidation, all rent seeking is case.

[David Nieporent]

Though I think these days there’s an element of fear involved, too:

There isn't. HTH.

[Michael P]

Please, point to where you think someone propounded that theory.

[LawTalkingGuy]

Scroll up, you will see Josh mentions this idea in the post.

[M L]

Most people are influenced by social desires and ambitions and pressures, and this influences thoughts and actions generally more than anything else it seems.

"Cocktail parties" was just a snarky meme for referring to this broad issue. But yet again, we see that memes have a tendency to manifest in reality, with this anecdote about Kavanaugh and a dinner party.

[DaivdBehar]

It isnot acocktail party theory. The theory is that humans imitate. Say you hate Iran. Move to Iran, you become Iranian in dress, in food, in language, in gestures, eventually in thought and in values. The culture of Washington is one of arrogant power over the country, for the purpose of rent seeking. The natural experiment will be the decisions of Justice Barrett in 2 years. Scalia went all DC scumbag. She will not escape her fate.

[Brett Bellmore]

I've occasionally thought it wouldn't be a bad idea to turn their marble chambers into a judicial museum, and relocate the Court to someplace distant from the halls of power. Utah is nice.

[DaivdBehar]

It has to be a place with a culture of small government. The Mayors of Salt Lake City have been Democrats since 1976.