Will Trump Release a New SCOTUS List this Year? (Part 1)
This is the first half of a two-part series detailing the future of Trump's Supreme Court list.
Past presidential elections have featured presidents promising to appoint a woman to the Supreme Court, or more general vows to appoint justices who follow a given judicial philosophy. Donald Trump followed up on that in 2016 by promising to appoint a justice in the mold of the recently-deceased Justice Antonin Scalia. To make that guarantee to the voters more concrete, the Trump campaign, in conjunction with the Heritage Foundation and other outside conservative groups, and the Federalist Society's Leonard Leo, released two separate lists in the course of the campaign. While this was certainly an unprecedented step at the time, today the Supreme Court is more visible than ever to the electorate, and the 2020 candidates have reacted accordingly. For instance, former Vice President Joe Biden, the presumptive Democratic nominee, has vowed to appoint an African-American woman to the Court. All of this raises the question: will Trump double down on his judicial appointment track record by updating his Supreme Court list? My guess is yes, and that if it does happen, it will be around the Republican National Convention in August.The Old List, and How it's Changed since 2017:
First, some background. There were two 2016 lists; one was released in May, and the other in September. They included:
U.S. Courts of Appeals:
U.S. Courts of Appeals:
- Thomas M. Hardiman, 3rd Circuit*
- Raymond M. Kethledge, 6th Circuit*
- Diane S. Sykes, 7th Circuit*
- Steven M. Colloton, 8th Circuit*
- Raymond W. Gruender, 8th Circuit*
- Neil M. Gorsuch, 10th Circuit**
- Timothy M. Tymkovich, 10th Circuit**
- William H. Pryor Jr., 11th Circuit*
- Margaret A. Ryan, Court of Appeals for the Armed Forces** (an Article I court)
State supreme courts:
- Keith Blackwell, Georgia Supreme Court**
- Charles T. Canady, Florida Supreme Court**
- Allison H. Eid, Colorado Supreme Court*
- Joan Larsen, Michigan Supreme Court*
- Thomas Rex Lee, Utah Supreme Court*
- Edward Mansfield, Iowa Supreme Court**
- David Stras, Minnesota Supreme Court*
- Don Willett, Texas Supreme Court*
- Robert P. Young Jr., Michigan Supreme Court**
U.S. District Courts
- Frederico A. Moreno, Southern District of Florida**
- Amul R. Thapar, Eastern District of Kentucky**
Attorneys:
- Senator Mike Lee**
Key:
- * - On 5/18/2016 list
- ** - On 9/23/2016 list
Judge Neil Gorsuch of the 10th Circuit was selected by President Trump in early 2017 to fill Justice Scalia's seat, and he was confirmed in April 2017.
On the second day of the 2017 Federalist Society national convention, the White House announced it was adding five additional jurists to the list. They were:
U.S. Courts of Appeals:
- Amy Coney Barrett, 7th Circuit
- Kevin C. Newsom, 11th Circuit
- Brett M. Kavanaugh, District of Columbia Circuit
State supreme courts:
- Britt C. Grant, Georgia Supreme Court
- Patrick Wyrick, Oklahoma Supreme Court
Judge Brett Kavanaugh of the D.C. Circuit was selected by President Trump in summer 2018 to fill Justice Anthony Kennedy's seat, and he was confirmed in October 2018.
In hindsight, it's clear this announcement of additions to the list was meant mostly as cover for Kavanaugh's addition, as many considered him the leading contender to replace Justice Kennedy if he retired. It's true that Barrett was considered seriously for the Kennedy vacancy as well, but I'm skeptical the White House had her in mind as a short-lister when announcing the additions. The others were not vetted for a Supreme Court nomination in 2018.
In the years since the list has been issued, there have been many changes in the judges' careers.
To begin with, President Trump elevated the following jurists on his list from state Supreme Court benches to federal courts of appeals across the country:
- Allison H. Eid, 10th Circuit (from Colorado Supreme Court)
- Britt C. Grant, 11th Circuit (from Georgia Supreme Court)
- Joan Larsen, 6th Circuit (from Michigan Supreme Court)
- David Stras, 8th Circuit (from Minnesota Supreme Court)
- Don Willett, 5th Circuit (from Texas Supreme Court)
The president also elevated Judge Amul Thapar of the U.S. District Court for the Eastern District of Kentucky to the 6th Circuit, and appointed Justice Patrick Wyrick of the Oklahoma Supreme Court to the U.S. District Court for the Western District of Oklahoma.
Justice Robert Young of the Michigan Supreme Court and Justice Keith Blackwell of the Georgia Supreme Court have resigned, or will resign in the near future, from their state court benches, so it's unlikely they will be considered for a Supreme Court appointment in the future.
Judge Margaret Ryan of the U.S. Court of Appeals for the Armed Forces (an Article I court with fifteen-year terms) is retiring at the end of July this year, so it's doubtful she'll be considered in the future. Likewise, Judge Federico Moreno of the U.S. District Court for the Southern District of Florida is taking senior status in July, so I'd venture to say he's out of consideration as well (although his age likely precluded him from serious vetting in 2017 and 2018 to begin with).
With two Supreme Court appointments and these four stepping down from full-time judicial service (or resigning altogether), the list, as last modified in 2017, has 20 jurists on it.
But there's another catch. The GOP seems to prefer their Supreme Court nominees being 55 or younger at the time of appointment to the Court. This age restriction removes U.S. Circuit Judges Diane Sykes, Steven Colloton, Raymond Gruender, Timothy Tymkovich, and William Pryor from the list by default, along with Chief Justice Charles Canady and Justices Thomas Lee and Edward Mansfield of the state supreme court bench from the list as well. Whether or not these eight judges are formally removed from the list going forward, I think their age is a de facto disqualifying factor. As such, the list is practically down to a dozen judges at this point.
The New List:
Diversity:
Ethnic:
The 2016 Trump list had one Hispanic (Moreno), one African-American (Young), and one Asian-American (Thapar). To account for the losses of Moreno and Young from the list, Trump will likely focus on adding some judges who identify as people of color.
Gender:
Republican presidents have only appointed one woman to the Supreme Court (Sandra Day O'Connor). Trump's old list has five women, but Judges Sykes and Ryan are out of contention, for the reasons I described above. As such, it's plausible Trump will supplement the list with additional female judges.
Religious:
All of the Republican appointees currently on the Court are Christian. Trump will plausibly consider some judges who practice other faiths, but this criteria is probably close to the bottom of his list of priorities.
Sexual Orientation / Gender Identity:
None of the 26 jurists on Trump's old list or the 9 justices currently on the Court are part of the LGBT community, and while this demographic isn't necessarily a prime GOP constituency, Trump could decide to make an attempt at reaching out to the community by adding a judge who identifies as LGBT to the list.
Geography:
After Justice Kennedy's retirement, only one justice hails from west of the Mississippi River. Trump could presumably look to judges across the country to add to his list.
Educational Practice:
Every current justice on the Court attended Harvard or Yale Law School. Trump, like Justice Thomas does in his clerk hiring process, might consider judges who didn't attend the top three or four law schools in the country.
Sexual Orientation / Gender Identity:
None of the 26 jurists on Trump's old list or the 9 justices currently on the Court are part of the LGBT community, and while this demographic isn't necessarily a prime GOP constituency, Trump could decide to make an attempt at reaching out to the community by adding a judge who identifies as LGBT to the list.
Geography:
After Justice Kennedy's retirement, only one justice hails from west of the Mississippi River. Trump could presumably look to judges across the country to add to his list.
Educational Practice:
Every current justice on the Court attended Harvard or Yale Law School. Trump, like Justice Thomas does in his clerk hiring process, might consider judges who didn't attend the top three or four law schools in the country.
The Clerk Factor:
I often tweet about X nominee having clerked for Y judge, or that X judge/justice has fed Y clerks to the bench. A prime reason I do this is to be cognizant of the fact that federal judges, particularly Supreme Court justices, have some degree of influence on the selection of their successors. And today, it seems even more likely for judges to recommend past law clerks to the White House for nomination. A prime example: both Justices Gorsuch and Kavanaugh clerked for Justice Kennedy.
This leads us to another observation: if Trump wins reelection, the White House Counsel's Office will likely focus its efforts on preparing for a potential retirement by Justice Clarence Thomas or Justice Samuel Alito (the two oldest Republican appointees). As such, the list will feature plenty of former clerks to both. The 2016 list already had Thomas clerks Margaret Ryan, Allison Eid, Thomas Lee, and David Stras, and Alito clerk Mike Lee. However, Trump has far more Thomas and Alito clerks to pick from now.
Comments
Post a Comment