NOTE: This article has been updated for accuracy. Thanks to Ed Whelan for correcting some of the mistakes in the original version.
According to Fred Barnes of The Weekly Standard, the White House has narrowed down its list of potential Supreme Court nominees to a top five: Brett Kavanaugh, 53, of the D.C. Circuit Court of Appeals; Amul Thapar, 49, of the 6th Circuit; Amy Barrett, 46, of the 7th Circuit; Thomas Hardiman, 52, of the 3rd Circuit; and Raymond Kethledge, 51, of the 6th Circuit.
Here’s what we know about them.
Brett Kavanaugh. Kavanaugh is a former clerk for Justice Kennedy. He was elevated to the federal bench in 2006, after a three-year delay. His nomination was delayed thanks to Democratic upset over the fact that Kavanaugh worked for Kenneth Starr in the office of the Solicitor General, and had the temerity to say that the Clinton administration targeted Starr. Kavanaugh has been on the court for quite a while, and has a long record — he’s authored nearly 300 decisions. He recently dissented when the circuit decided that a 17-year-old illegal immigrant detainee had a right to an abortion (he explained that the decision was “based on a constitutional principle as novel as it is wrong”), and held in 2011 that the Washington, D.C. ban on semi-automatic rifles and its gun registration requirement were unconstitutional under Heller. He also held that the Consumer Financial Protection Bureau structure was unconstitutional. Kavanaugh has been a strong critic of Chevron deference to administrative agencies (although his Chevron strategy has been less straightforward, according to some, than that of Justice Gorsuch). Kavanaugh has stated that his judicial philosophy is textualist, although some commentators suggest that his textualism is not as strong as Gorsuch’s [NOTE: These sentences have been corrected; the original version was inaccurate.] Kavanaugh, like Chief Justice Roberts, is known for working across the aisle. On the other side of the ledger, critics suggest (correctly in my view) that Kavanaugh upheld Obamacare in Sissel v. Department of Health and Human Services as well as in Seven-Sky v. Holder, in which he stated that the Obamacare penalties were actually “taxes.” Critics have also pointed to his opinion in a case regarding whether the government could compel priests to cover birth control under Obamacare; in that dissent, he held that there was a compelling government interest in providing birth control, but that the government could find less restrictive means of doing so.
Amul Thapar. Thapar is relatively new to the appellate courts. He voted to uphold Ohio’s method of lethal injection, and a Michigan government meeting’s opening with a Christian prayer. Thapar has ruled that monetary donations are a form of protected speech under the First Amendment. Because Thapar’s record is relatively thin, there’s not much to go on with regard to major hot-button issues like abortion and religious freedom. With that said, Professor Brian Fitzpatrick of Vanderbilt Law School describes Thapar as “very Scalia-like and Thomas-like.” Indeed, Thapar has criticized Richard Posner’s “pragmatism” in judicial theory because using pragmatism rather than text “would elevate judges to the position of ‘co-legislator.’” He is a textualist who has praised Scalia himself.
Amy Barrett. Barrett’s nomination to the 7th Circuit became a cause celebre when Democrats began suggesting that her Catholicism was a bar to her ability to be an objective judge. She believes that life begins at conception, and signed a letter from the Becket Fund criticizing Obamacare’s requirement that employers provide contraceptive coverage, calling it a “grave violation of religious freedom.” Barrett has written in great depth on Justice Scalia’s originalism; she’s evidenced support for textualism as well. She clerked for Scalia.
Thomas Hardiman. Leonard Leo, one of Trump’s chief advisors, has described Hardiman as “very much in the mold of Justice Scalia, well-schooled on the doctrines of originalism and textualism.” He has not spoken out himself about his judicial philosophy. He has stood against a New Jersey law that required a showing of “justifiable need” to allow carrying a handgun publicly. In another Second Amendment case, he specifically stated that the “threshold question in a Second Amendment challenge is one of scope,” adding that the inquiry “requires an inquiry into ‘text and history.’” But he also ruled that a plaintiff could sue for sex discrimination on the grounds that he was a male treated badly for being effeminate (thus broadening the class of claims under Title VII of the Civil Rights Act), and ruled to strike down a fire department’s residency requirement, which he termed racially motivated (in that case, he equated disparity with discrimination by statistical modeling, stating, “minority workforce representation that low suggests discrimination”). He also ruled in favor of an illegal immigrant seeking asylum on the grounds that he was targeted by MS-13.
Raymond Kethledge. Kethledge, like Kavanaugh, is a former Kennedy clerk. In 2016, Kethledge slammed the IRS for failing to turn over materials necessary for determining whether they discriminated against conservative groups. Kethledge tends toward textualism, as he described in his original confirmation testimony: “I would make sure that the values that I would be enforcing if I were a judge are not just my values, that I am not striking something down simply because I don’t like it. That is a countermajoritarian aspect of our system of Government. I would start with the text. I would say that, sir.” He also said before the Federalist Society that “The court tries to find the best objective interpretation of the statute, based on the statutory text,” and said that the job of the court was to determine “what is the meaning that the citizens bound by the law would have ascribed to it at the time it was approved.” As far as abortion, Kethledge was Judiciary Committee counsel for Spencer Abraham when Abraham was pushing for a federal abortion ban.
So, here’s the bottom line: the most outspokenly textualist judges on this list are Barrett and Thapar (though Kavanaugh and Kethledge have spoken in favor of textualism as well). Kavanaugh has some red flags; Hardiman has red flags of his own. We will certainly need to ask probing questions about those on the list, and we’ll need to hear from groups that have spent time vetting all of the candidates. Conservatives simply can’t afford another Souter, Kennedy, O’Connor, or Roberts.