Who is Trump going to pick for the Supreme Court? The president’s original shortlist started out with 25 names but it’s now down to just a handful. Conservative media, White House insiders, and the many factions of the right-wing legal world have stepped forward to claim knowledge of the frontrunners and why they will (or won’t be picked). Let’s take a look at the likeliest picks.
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A female Trump pick? Among the earliest leaks proffered about Trump’s court pick was that he planned to pick one of the women on his shortlist in order to mitigate the politics of abortion rights as the next justice could overturn Roe v. Wade. Trump himself fueled the speculation by saying that his latest list had six names, including two women. The two women candidates are federal appellate judges Amy Coney Barrett and Judge Joan Larsen.
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An even shorter list: But that list of six names has reportedly shrunk even further to just three names. Barrett made the cut but Larsen did not. Alongside Barrett, Fox News reported that Trump is also leaning towards D.C. Court of Appeals Judge Brett Kavanaugh, and Sixth Circuit Court of Appeals Judge Raymond Kethledge. That’s backed up by CNN’s reporting, which indicated that Vice President Mike Pence met with all three of the candidates named by Fox as Trump favorites.
Amy Coney Barrett: Except for a brief two years as an associate in private practice, Barrett has spent her career in legal academia before taking a seat on the Seventh Circuit Court of Appeals. She taught at George Washington University, University of Virginia and Notre Dame. She got her law degree from Notre Dame and clerked for Justice Antonin Scalia. That pedigree, while impressive, may not be enough to endear her to Trump, who is reportedly looking for someone with an Ivy League education.
Religion: The federal courts and the culture wars are never far away from one another and in Barrett, the two meet squarely over the issue of religion. During her September 2017 confirmation hearing, Sen. Dianne Feinstein (R-CA) began her questioning of Barrett with the blunt declaration: "You're controversial because many of us who have lived our lives as women really recognize the value of finally being able to control our reproductive systems" and that the conservative, Catholic legal scholar had “a long history of believing your religious beliefs should prevail" in matters of legal jurisprudence.
Liberals frequently cite an academic article Barrett co-wrote in 1998 as evidence that she would weight Catholic social teaching alongside the law in legal decisions. The article pondered whether Catholic judges should recuse themselves from death penalty cases because of the inability to reconcile the church’s moral teaching with their legal responsibilities. Less openly stated is the suspicion among liberals over Barrett’s membership in People of Praise, a Christian religious group which assigns women “handmaid” advisors and teaches that they should submit to their husband’s authority.
Brett Kavanaugh: The New York Times has declared Kavanaugh the “frontrunner” in Trump’s final trio. As a Yale graduate, he fits Trump’s Ivy League preference. As the Times points out, his experience investigating the Clintons while working for former Independent Counsel Kenneth Starr in his four-year-long investigation of Bill Clinton’s Arkansas real estate deals and sex scandals is a double-edged swords. Kavanaugh’s experience as a Starr inquisitor placed him on the record supporting the kinds of impeachment authorities which could be used against Trump in the ongoing Russia inquiry. But his subsequent expressed regrets about the investigation could warm him to a president eager to be rid of special counsel Robert Mueller’s probe.
Detractors: Despite a solid conservative pedigree, not all on the right are psyched for a Kavanaugh pick. The tension has spilled out into the pages of National Review where some pundits have damned Kavanaugh with faint praise. Much of the flack he gets from the right comes from his decision in an Obamacare case, Seven-Sky v. Holder. In that case, Kavauagh rejected what he called the “natural and understandable inclination to decide these weighty and historic constitutional questions” and dissented from the majority to argue that the courts did not have jurisdiction because the Anti-Injunction Act required plaintiffs to have first paid a tax before challenging it in court. The decision was a narrow and technical one that sidestepped the broader conservative concerns over the individual mandate. But it had the practical effect of upholding a pillar of Obamacare—a slight not soon forgotten among some conservatives.
Raymond Kethledge: As a former clerk to Justice Kennedy, he is a relative dark horse candidate among the final three. Kethledge earned plaudits on the right with a Wall Street Journal opinion page “Opinion of the Year” for his opinion in EEOC v. Kaplan Higher Education Corp., where the Equal Employment Opportunity Commission’s sued Kaplan Higher Education company,alleging its credit check for job applicants illegally discriminated against African-American job seekers. In the ruling, Kethledge blasted the EEOC for bringing the case “on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself.”
Kethledge is also the co-author of a book extolling the virtues of spending time alone, Lead Yourself First: Inspiring Leadership Through Solitude, which explores how leaders throughout history have used me-time for growth.
