So, President Trump has apparently narrowed down his choices for the Supreme Court to four — and he’ll announce who gets the rose tonight. Those four are D.C. Circuit Court of Appeals Judge Brett Kavanaugh; 3rd Circuit Court of Appeals Judge Thomas Hardiman; 7th Circuit Court of Appeals Judge Amy Coney Barrett; and 6th Circuit Court of Appeals Judge Raymond Kethledge.
All are smart lawyers with high praise from their supporters. Any of them would be an improvement on Justice Anthony Kennedy, whom Trump will be replacing.
With that said, where are their major flaws?
Kavanaugh. Kavanaugh has a heavy base of support particularly among former Bush administration staffers. His critics essentially make three claims. First, they argue that in a case called Seven Sky, he went out of his way to avoid jurisdiction over Obamacare by classifying its fine as a tax — the first time that position had been legally argued — and in doing so, provided Chief Justice Roberts the club he would later wield to uphold Obamacare against Constitutional challenge. Kavanaugh’s defenders say that this is just an example of Kavanaugh using judicial restraint in order to avoid ruling on the case in the first place. Second, critics argue that in a case called Priests for Life, Kavanaugh expressed that the government had a “compelling government interest” in provision of contraceptive coverage. Kavanaugh’s fans say that his language was reflective of the Supreme Court holding in Hobby Lobby (though this is dubious). Third, critics say that in a case called Garza, Kavanaugh didn’t join a dissent that criticized Roe v. Wade, instead rejecting the government’s necessity to provide an abortion for an illegal immigrant on other grounds. Kavanaugh’s defenders point out that another judge on the D.C. Circuit who did write critically of Roe joined Kavanaugh’s dissent in the case. Finally, Kavanaugh granted standing to an atheist suing the government over the Pledge of Allegiance.
Hardiman. Hardiman was the runner-up to now-Justice Gorsuch just last year. His critics claim he’s too soft on a few scores. First, there’s a case called Prowel, in which Hardiman found that a gay, “effeminate man” could be discriminated against under Title VII of the Civil Rights Act based on “gender stereotyping,” despite the fact that this does not reflect the text of Title VII, and that Title VII does not cover sexual orientation. Second, in NAACP v. North Hudson Regional Fire & Rescue, he ruled to strike down a fire department’s residency requirement based on a finding of “disparate impact.” Third, in Valdiviezo-Goldamez, Hardiman ruled that an illegal immigrant could claim asylum thanks to targeting by MS-13, rather than targeting by the government. Fourth, Hardiman isn’t exactly a critic of so-called Chevron deference, which gives tremendous power to administrative agencies. Fifth, critics charge that Hardiman isn’t textualist enough — that he focuses on legislative history rather than the text of a statute. Finally, Hardiman’s critics point at his close relationship with Trump’s liberal sister on the circuit court, as well as his familial relationships with Democrats.
Barrett. Criticism of Barrett from the Right has largely centered on her lack of experience — we just don’t have a huge body of work to follow when it comes to her judicial opinions, since she’s only been a judge for a year.
Kethledge. Criticism of Kethledge has centered on his record in immigration cases — immigration hardliners charge that he’s not hard-line enough on immigration — although their reading of cases like Van Don Nguyen is strained, to say the least.
We’ll know at 9 PM ET tonight where Trump comes down on these nominees. If I had to rank them, I’d go Barrett, Kethledge, Kavanaugh, Hardiman.