President Donald Trump has reportedly narrowed his search to seven candidates to replace retiring Supreme Court Justice Anthony Kennedy, with the goal of naming a nominee on Monday, July 9.
NBC News reported late on Tuesday that Trump is considering: Brett Kavanaugh, Amy Coney Barrett, Amul Thapar, Raymond Kethledge, Mike Lee, Thomas Hardiman, and Joan Larsen.
ABC News reported that Sen. Rand Paul (R-KY) contacted the president regarding his objections to nominee Brett Kavanaugh, whom many top conservatives have warned “is too much of an establishment-aligned choice.”
“Trump’s list is full of great nominees, but Kavanaugh raises several concerns among libertarian and pro-life activists at a time when we need to be united,” said Wesley Denton, communications director for the Conservative Partnership Institute. Daily Wire Editor-in-Chief Ben Shapiro also noted that Kavanaugh has a few red flags that need to be taken into consideration.
Amy Coney Barrett, 46:
Politico notes that the Notre Dame Law School grad is “popular among religious conservatives, she would be the fifth woman to serve on the Supreme Court.” Shapiro writes of 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.
Brett Kavanaugh, 53:
Politico reports that Kavanaugh was “appointed to the powerful D.C. Circuit Court of Appeals in 2006 by Bush, for whom he had previously served Assistant to the President and staff secretary,” and he graduated from Yale Law School. Below is an excerpt of Shapiro’s profile of Kavanaugh highlighting the pros for conservatives:
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.
Shapiro cites the following as sources of criticism of the judge among some conservatives:
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.
Joan Larsen, 49:
Larsen is a Northwestern law grad and former clerk of Scalia. Politico reports:
Larsen offers conservatives the possibility of installing a justice who could serve for three decades.
She also has the shortest judicial record of any of those considered finalists: She spent nearly all of her legal career as a law professor at the University of Michigan before being appointed to that state’s top court in September 2015, less than a year before Trump publicly named her as a potential Supreme Court pick.
Mike Lee, 47:
Lee is the most famous of the reported finalists, as he is one of the conservative leaders in the Senate. were he has served since 2010. Politico notes that he “clerked for Samuel Alito when Alito was a judge on the Third Circuit Court of Appeals and worked as an Assistant United States Attorney in Utah.”
Amul Thapar, 49:
Politico notes that Thapar, “the first South Asian Article III judge,” was named by Trump to the 6th Circuit Court of Appeals in 2017 and “previously served as U.S. Attorney for the Eastern District of Kentucky under Bush and was appointed by Bush to the U.S. District Court for the Eastern District of Kentucky in 2008.” Below is Shapiro’s profile of 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.
Raymond Kethledge, 51:
“Kethledge, who joined the 6th Circuit in 2008, has a resume with something rarely seen on Trump’s SCOTUS list: a stint on Capitol Hill,” Politico reports. “The University of Michigan law school graduate spent a couple of years as a Judiciary Committee counsel to former Sen. Spencer Abraham (R-Mich.) before heading across the street to clerk for Kennedy.”
Here’s Shapiro’s take on 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.
Politico highlights a 2014 opinion by Kethledge in which he rejected the Equal Employment Opportunity Commission case arguing that private employers’ using credit checks for job applicants amounted to racial discrimination, a stance Kethledge described as hypocritical.
Thomas Hardiman, 52:
Hardiman, a Georgetown law school graduate, was nominated to the 3rd Circuit in 2006 after spending a few years as a federal judge in Pittsburgh. “A 2007 ruling Hardiman wrote upheld the constitutionality strip searches of jail prisoners regardless of how minor an offense they were accused of. The Supreme Court later endorsed his decision, 5-4,” notes Politico, which also highlights Hardiman’s pro-Second Amendment record.
Here’s Shapiro’s profile of 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.