So, that happened.
Justice Anthony Kennedy, the Supreme Court’s occasional swing-voter, looked over at the racist goon in the White House and said “That’s exactly the sort of person I want to choose my successor.”
In fairness to Kennedy, he likely made this decision because the Trump administration has gone to extraordinary lengths to show conservatives that Trump will nominate the same kind of judges who would have been chosen by, say, President Ted Cruz.
Trump has largely delegated the task of filling many judgeships to the conservative Federalist Society and to Leonard Leo, one of the Society’s top executives. And so, Trump’s nominees have fit a fairly consistent mold. Most of them are conventionally qualified — often with stunningly impressive resumes — and most of them are just a few inches to the left of Attila the Hun, ideologically speaking.
Whoever Trump picks, we can expect them to be a reliable vote for a fairly comprehensive conservative agenda developed within the Federalist Society and its allies. Nevertheless, Trump’s choice could reveal which parts of that agenda the administration wants to emphasize, and how they hope to use this nomination fight to score political points.
The following is a non-exhaustive list of potential Trump nominees.
The first name on nearly everyone’s list of potential nominees is Judge Brett Kavanaugh, of the United States Court of Appeals for the D.C. Circuit. After joining that court in 2006, Kavanaugh became one of the court’s most outspoken — and most effective — proponent of decisions reigning in federal agency regulations generally, and the EPA in particular.
According to environmental law scholar Robert Percival, in one 2013 case Kavanaugh “‘would have gutted” an important provision of the Clean Air Act. When President Obama’s most ambitious effort to fight climate change reached the DC Circuit in 2016, Kavanaugh led the court’s conservatives in attacking Obama’s Clean Power Plan. At one point, Kavanaugh even cited the Pope to bolster his case against Obama.
Kavanaugh also wrote an opinion claiming that Donald Trump should have been able to remove former Consumer Financial Protection Bureau Director Richard Cordray before Cordray’s five year term expired.
In other words, should he join the Supreme Court, Judge Kavanaugh would likely become a powerful ally in Neil Gorsuch’s effort to smash the administrative state.
Temperamentally, however, the two men are quite different. While Gorsuch’s favorite tool is a sledgehammer — Gorsuch has contempt for precedents he disagrees with, and he likes to make sweeping doctrinal pronouncements that would upend decades or even centuries of law — Kavanaugh is more likely to pick up a scalpel.
Judge Kavanaugh’s judicial persona is wonky and quick to reassure his opponents of his reasonableness. In the Clean Power case, Kavanaugh went to great pains to say that he is not a climate change denier. When Kavanaugh heard a challenge to the Affordable Care Act, he worried that the legal arguments advanced by the law’s opponents could also undermine future efforts to privatize Social Security.
Just in case there is any doubt, Kavanaugh’s conservative credentials are solid. Among other things, the judge recently sided with the Trump administration in a dispute about whether the administration could deny abortion care to undocumented minors while they were held in government custody. But Kavanaugh is the kind of conservative that has fallen out of favor in the age of Trump — the kind that understands the ins and outs of policy and is capable of advancing his goals with surgical precision.
In a few years, Judge Amy Coney Barrett would be on any Republican president’s shortlist for the Supreme Court. She is young and personable as well as being smart and deeply conservative. If the former Notre Dame law professor and clerk to Justice Antonin Scalia’s has any liability, the biggest is simply that she’s only been a judge for less than a year. Trump appointed her to the United States Court of Appeals for the Seventh Circuit last November.
Judge Barrett’s star has risen quite quickly, however, thanks to a disastrous campaign her opponents ran in 2017 in a failed bid to defeat her nomination — a campaign which culminated in Sen. Dianne Feinstein (D-CA) making a statement that conservative groups quickly labeled as anti-Catholic.
To be sure, Barrett’s record indicates that she is a staunch social conservative who, if confirmed to the Supreme Court, would be an all-but-certain vote to overrule Roe v. Wade. In a 2013 speech, Barrett reportedly stated that life begins at conception and criticized the Roe decision for igniting “a national controversy.” She also signed a 2012 statement saying that President Obama’s policies requiring employee health plans to cover contraception was “a grave violation of religious freedom and cannot stand.”
Yet much of the opposition to her 2017 nomination blurred the line between Barrett’s political and legal views, and her Catholic faith. In the late 90s, when Barrett was still a law student, the future judge co-authored an article called “Catholic Judges in Capital Cases,” which argued that a Catholic judge may need to recuse in some cases where their faith is at odds with the demands of the law. Barrett later disavowed the arguments she made in this article at her confirmation hearing.
Nevertheless, in memos and “fact sheets” published by groups opposed to Barrett’s nomination, this article became a damning artifact showing that “Barrett wrote specifically about the duty of judges to put their faith above the law.” The ill-fated campaign against Barrett culminated with Sen. Feinstein telling Barrett that “the dogma lives loudly within you.”
If Barrett is the nominee, this video of Feinstein’s ill-chosen words are likely to play a starring role in Republican campaign videos seeking to gin up religious right turnout in the 2018 election.
Some men just want to watch the world burn.
Take Sen. Mike Lee (R-UT). Lee believes that federal child labor laws are unconstitutional (his exact words were “as reprehensible as child labor is, and as much as it ought to be abandoned — that’s something that has to be done by state legislators, not by Members of Congress.”) He also believes that “the Constitution doesn’t give Congress” power over health care and retirement — so no Medicare, Medicaid, or Social Security.
Similarly, in a 2011 interview, Lee said that federal disaster relief, food safety programs, and anti-poverty programs are unconstitutional. In Mike Lee’s America, a ten-year-old boy works a sub-minimum wage job to help his mother afford her rent, then spends the money on a hamburger made with tainted beef.
A rational president would never consider a candidate who is quite literally on record saying he would strike down child labor laws and Social Security, but America is ruled by Donald Trump. And Trump is reportedly considering Lee quite seriously.
Not too long ago, a Supreme Court nominees were frequently judges with thin records, such as then-Judge John Roberts, or judges who were not assigned many controversial cases during their career on the bench, such as then-Judge Sonia Sotomayor.
This model appears to be out of favor in the Trump administration, however. Trump’s first nominee, Neil Gorsuch, spent much of his later years as a lower court judge writing gratuitous concurring opinions announcing that he agreed with the ideas discussed at the Federalist Society’s annual meetings.
Indeed, at least one potential nominee appears to have taken the hint. Despite nearly a decade of service on the United States Court of Appeals for the Sixth Circuit, Judge Raymond Kethledge heard relatively few controversial cases. He could potentially have kept his mouth shut, hoped for a nomination, and then cruised through his confirmation hearing.
Kethledge chose instead to deliver a law school lecture last December, where he appeared to endorse one of Gorsuch’s major projects to expand judicial power at the expense of federal agencies. Indeed, Kethledge claimed that the Supreme Court’s decision in Chevron v. Natural Resources Defense Council, which requires courts to defer to a federal agency’s interpretation of a statute when that law is ambiguous, “has created a palpable sense of entitlement among executive agencies.”
This may seem like inside baseball, but a Supreme Court decision overruling Chevron would give the Court’s Republican majority massive new power to strike down environmental, labor, and other progressive regulations. Combined with aggressive gerrymandering, a decision overruling Chevron could potentially reduce future Democratic presidents’ power to virtually nothing.
In any event, if Trump did chose a nominee with a more ambiguous record, that would give his side a tremendous advantage during the confirmation fight. Anyone Trump nominates will be well-connected in conservative legal circles, and key players within those circles will know a great deal about how the nominee thinks. Senate Democrats, meanwhile, will be left in the dark.
Thus far, the Federalist Society exercised a great deal of influence over Trump’s judicial nominations, but we’re still talking about Donald Trump here. There’s no guarantee that he won’t impulsively nominate some TV personality.
Indeed, Trump’s son appears to be pushing for such an outcome.
This would be pretty awesome😂😂😂 https://t.co/TrM714IMAR
— Donald Trump Jr. (@DonaldJTrumpJr) June 27, 2018
Realistically, if you care about civil rights, voting rights, or any of the other myriad of issues that is likely to face the next member of the Court, Justice Pirro is the best option. A troll nominee is likely to get bored with the job quickly and leave the Court for a more lucrative gig. Any of the other names on the list could shape the law for decades.