A guide to the 9 likeliest picks to replace Anthony Kennedy


A guide to the 9 likeliest picks to replace Anthony Kennedy

As soon as Justice Anthony Kennedy announced his retirement after 31 years on the Supreme Court, picking his replacement immediately became one of Donald Trump’s most important acts as president. Kennedy is a center-right figure who is solidly conservative on most business and First Amendment cases but strongly pro-gay rights and cautiously supportive of reproductive rights. His replacement is sure to be a more doctrinaire conservative along the lines of Neil Gorsuch, Trump’s first pick for the Court.

Unusually, Trump has been releasing shortlists of candidates he’d consider for the Court ever since the presidential campaign. His current list, issued in November 2017 in the aftermath of Gorsuch’s appointment, has 25 names. It’s largely a list of solidly conservative options who’d be on most Republican nominees’ shortlists for the Court.

Not all 25 are likely to make it very far in Trump’s vetting. Prediction markets can help us winnow down the list. The following nine people are listed on PredictIt as having the best odds of being tapped by Trump to replace the departing Kennedy. They are listed according to their ranking as of Wednesday at 9 pm Eastern.

Brett Kavanaugh

A guide to the 9 likeliest picks to replace Anthony Kennedy

Current position: Federal appellate judge (DC Circuit Court of Appeals)

Why Trump picked him: Brett Kavanaugh has about as long and high-profile a record in Republican legal circles as anyone on this list. A former clerk to Anthony Kennedy, as well as appellate judges Alex Kozinski and Walter Stapleton, he represented Cuban child Elian Gonzalez pro bono during the conservative battle to keep him from returning to Cuba, and was one of the George W. Bush campaign’s lawyers in the Florida recount.

Before that, though, Kavanaugh was a protegé of Kenneth Starr, whom he served both in the solicitor general’s office under George H.W. Bush and as independent counsel during the investigation into the Clinton family’s Whitewater real estate deal. He was a principal author of the Starr Report, which detailed Bill Clinton’s affair with Monica Lewinsky and misrepresentations of that affair in sworn testimony.

“As a prosecutor, Kavanaugh set a bracing literary standard (‘On all nine of those occasions, the President fondled and kissed her bare breasts…’),” the New Yorker’s Jeffrey Toobin recalled in 2012, “but his work as a judge may be even more startling.” Toobin cites Kavanaugh’s opinion on the DC Circuit when considering a constitutional challenge to the Affordable Care Act:

It’s hardly his only stridently conservative opinion on the DC Circuit. In a profile for Ozy, Daniel Malloy notes, “Kavanaugh this year declared that the Consumer Financial Protection Bureau is unconstitutional, given the agency’s independence and unitary structure, and he has voted repeatedly to slap back aggressive regulations from Barack Obama’s Environmental Protection Agency.”

At the same time, Kavanaugh knows how to do the DC song and dance of pretending not to believe what he clearly believes on key questions of jurisprudence. He told senators during his confirmation hearings that he’d respect precedent on abortion and declined to share his views on Roe v. Wade. But there’s little doubt that he’d be a doctrinaire conservative on the Supreme Court, and one with a strong belief in presidential power, similar to Samuel Alito.

Amy Coney Barrett

A guide to the 9 likeliest picks to replace Anthony Kennedy

Current position: Federal appellate judge (Seventh Circuit Court of Appeals)

Why Trump picked her: Amy Coney Barrett, only 46, is relatively new to the bench; her first appointment came from Trump in 2017. She only got her commission last November. But Clarence Thomas was barely on the circuit court for a year when he was elevated to the Supreme Court, and there’s no reason Barrett couldn’t follow in his footsteps.

A clerk to conservative appellate Judge Laurence Silberman as well as Antonin Scalia, and a longtime professor at her alma mater Notre Dame Law School, Barrett’s confirmation hearings earned headlines due to a controversial line of questioning from Democratic Sens. Dick Durbin (IL) and Dianne Feinstein (CA), who asked her repeatedly about her Catholic faith. Durbin asked, “Do you consider yourself an orthodox Catholic?” while Feinstein commented, “When you read your speeches, the conclusion one draws is that the dogma lives loudly within you.”

Liberal groups, while not defending the precise questioning, highlighted some of her writing on questions of Catholic faith and constitutional interpretation as concerning, noting a piece she co-authored that rejected Justice William Brennan’s argument that Catholic judges should always hold the Constitution as more important than their religious faith. In her confirmation hearing for the Seventh Circuit, Barrett asserted that these were her co-author’s views, not her own.

Barrett also argued that the birth control benefit in the Affordable Care Act impinges on religious liberty, argues that cases like Roe v. Wade might not need to stand as precedents if future courts judge them to be wrongly decided, and has explicitly asserted that the “original public meaning” of the Constitution must be upheld, even though that “adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education.”

Barrett was ultimately confirmed with only three Democrats (Joe Manchin, Joe Donnelly, and Tim Kaine) voting in favor. But an elevation to the Supreme Court would force a much larger dispute about what, exactly, she believes the original meaning of the Constitution requires.

Thomas Hardiman

A guide to the 9 likeliest picks to replace Anthony Kennedy

Current position: Federal appellate judge (Third Circuit Court of Appeals)

Why Trump picked him: Donald Trump’s been known to say that “the police in our country do not get respect.” That is assuredly not Thomas Hardiman’s fault.

On the Third Circuit, Hardiman has consistently sided with law enforcement against defendants and inmates. He ruled that a policy of strip-searching jail inmates didn’t violate the Fourth Amendment’s protections against unreasonable search (an opinion the Supreme Court upheld). He’s also written, in dissent, that the First Amendment does not give citizens the right to tape police — something with which every state in the union currently disagrees.

Hardiman’s pre-judicial career is full of the kinds of things liberals and Democrats don’t like: He donated to Republican candidates before being appointed to the bench (something that is neither illegal nor, to most legal experts, a big deal), and he represented plenty of political clients and political cases while he was in private practice. Most of this is insignificant: Just like it’s a defense lawyer’s job to defend murderers, it’s a civil lawyer’s job to defend companies accused of discrimination.

But it’s ironic that one of Hardiman’s most high-profile cases was a housing discrimination suit against a company accused of conspiring to keep out low-income clients — given that the president who might appoint him to the Supreme Court, early in his own career, settled a housing discrimination suit of his own against the federal government.

Perhaps most relevant to Hardiman’s chances, though, is that he was reportedly Trump’s second choice after Neil Gorsuch to replace Antonin Scalia. Despite his conservative record, grassroots right-wing activists freaked out when his name was floated, arguing he could be a stealth liberal. (The evidence for this was shockingly weak.) Perhaps, then, second time’s the charm?

Amul Thapar

A guide to the 9 likeliest picks to replace Anthony Kennedy

Current position: Federal appellate judge (Sixth Circuit)

Why Trump picked him: Amul Thapar was a US attorney turned district court judge appointed by George W. Bush when Trump first floated him as a Supreme Court candidate in September 2016. But district court judges are almost never elevated directly to the Supreme Court (the last person to make that jump was Edward Terry Sanford in 1923), and so nominating him for a circuit court was a natural stepping stone for an eventual Thapar Supreme Court bid.

Brian Fitzpatrick of Vanderbilt Law, who researches federal courts, told Bloomberg BNA that Thapar was ”very Scalia-like and Thomas-like” in his jurisprudence. The liberal group Demand Justice has, accordingly, already mobilized to stop his prospective nomination. They highlight a 2016 decision in which he ruled that a Kentucky state prohibition on political contributions by judges violated the First Amendment; his judgment was later overturned by the Sixth Circuit, which argued the restriction furthered a “compelling interest in preventing the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics.”

The left-wing Alliance for Justice highlights five other decisions sure to come up should Thapar be nominated, including one where he ruled that a male employee alleging a male co-worker sexually harassed him had to provide “credible evidence that the harasser was homosexual,” and another where he imposed harsh sentences on antiwar activists, including a nun, for an anti-nuclear protest that he alleged threatened national security. (Their convictions were later overturned.)

Raymond Kethledge

A guide to the 9 likeliest picks to replace Anthony Kennedy

Current position: Federal appellate judge (Sixth Circuit Court of Appeals)

Why Trump picked him: Raymond Kethledge appears to be the kind of judge who very much enjoys telling people why they’re wrong.

In 2014, he wrote an opinion upholding the use of credit checks to screen potential employees at Kaplan, a for-profit education firm, defending the company from an Equal Employment Opportunity Commission (EEOC) lawsuit. The opinion noted, pointedly, that use of credit checks was permitted by the EEOC’s own hiring guidelines — an act of gotcha jiujitsu that was praised by the Wall Street Journal.

More recently, in a case involving the IRS’s alleged persecution of conservative political groups, Kethledge forcefully ordered the agency to turn over information — and rejected the tactic it had tried to use in its defense as an “extraordinary remedy” not appropriate for a suit like this.

But if you’re picturing Kethledge as a mini-Scalia, all flashy rhetoric and black-and-white conservative principle, you’re off the mark. He was a Senate Judiciary Committee staffer under Michigan Republican Spencer Abraham in the 1990s, but Abraham, while a founder of the Federalist Society, was also a pro-immigration Arab American who lost (to Debbie Stabenow) after being attacked as a terrorist sympathizer. And during his confirmation hearings before the committee in 2003, he emphasized his pro bono work with criminal defendants and low-income residents trying to keep their homes.

A 2013 Kethledge opinion, which is already being cited outside his home circuit, says “there are good reasons not to call an opponent’s argument ‘ridiculous’” — not the least of which, he elaborates, is that you might be wrong. It’s hard to imagine hearing that sentiment from Scalia — or from the president now offering to appoint Kethledge to the highest court in the land.

Joan Larsen

A guide to the 9 likeliest picks to replace Anthony Kennedy

Current position: Federal appellate judge (Sixth Circuit Court of Appeals)

Why Trump picked her: Judicial conservatives have historically believed in a restrained executive branch. Donald Trump very much does not.

Then again, neither did President George W. Bush. So Trump could do worse than to appoint someone who worked in the Office of Legal Counsel during Bush’s administration — and wrote one of the legal memos on which he based his administration’s activities in the early days of the war on terror.

Joan Larsen was a deputy assistant US attorney general from 2002 to 2003. While that’s the period during which the Office of Legal Counsel (led by John Yoo) churned out memos authorizing waterboarding and other forms of torture, Larsen claims she didn’t have the security clearance to know anything about those. She did, however, write a memo about indefinite detention — one that still hasn’t been released to the American Civil Liberties Union, despite a lawsuit.

Larsen has some experience in the judicial branch: She was a clerk for Antonin Scalia himself before going to the executive branch. (After his death, she wrote a eulogy for the New York Times in which she said her proudest moment was persuading him “that a criminal defendant should win a case that none of the justices originally thought he should win.”) She was appointed by Michigan Gov. Rick Snyder (R) to the state’s Supreme Court in 2015. Between the two, she taught constitutional and criminal law at the University of Michigan and served as counsel to the dean.

Her tenure in the Bush White House didn’t sink Trump’s nomination of her to Sixth Circuit in 2017, to which she was confirmed by a 60 to 38 vote (with both Michigan Democrats voting yes). But it will be newly relevant if she is nominated to replace Kennedy.

Britt Grant

A guide to the 9 likeliest picks to replace Anthony Kennedy

Current position: State Supreme Court justice (Georgia)

Why Trump picked her: Grant, 40, was appointed to the Georgia Supreme Court in 2017 by Republican Gov. Nathan Deal. She’s since been offered a promotion of sorts: Trump tapped her as a judge for the 11th Circuit Court of Appeals. She faced a relatively uneventful Judiciary Committee hearing in May — though her confirmation is currently caught up in Sen. Jeff Flake’s (R-AZ) fight on tariffs.

Grant is one of the younger of Trump’s potential nominees, but, based on her resume, she’s a reliably conservative, Federalist Society card-carrying justice. She worked in the George W. Bush White House on the Domestic Policy Council, did a stint at the white-shoe Kirkland & Ellis LLP as an associate, and clerked for Kavanaugh.

Her judicial resume is a bit thin for Supreme Court territory, though the bulk of her litigation experience comes from her time as Georgia’s solicitor general from 2015 to 2017, and before that, her work as the counsel for legal policy in the Office of the Georgia attorney general. Liberal groups have objected to Grant for her work on amicus briefs in politically charged Supreme Court cases, including Shelby County v. Holder, regarding the Voting Rights Act, which Grant said she “edited and reviewed.”

Mike Lee

A guide to the 9 likeliest picks to replace Anthony Kennedy

Current position: United States senator (Utah)

Why Trump picked him: It might not seem surprising that Donald Trump would put the chair of the Senate Judiciary Committee’s Subcommittee on the Constitution on his Supreme Court long list. But back in 2016, when Donald Trump put out the first edition of the judge list, Lee was very much not on it.

Lee, stung by Trump’s treatment of his close friend Ted Cruz during the Republican primary, went on rants against Trump during the presidential campaign — and even called for Trump to stand aside after the Access Hollywood tape was released.

After all that, it’s somewhat surprising that Trump is willing to give Lee the time of day, much less consider him for a Court spot. But Lee, like most congressional Republicans, has tamped down his criticism substantially since Trump became president. He’s criticized Trump’s comments after Charlottesville and about “shithole countries,” but praised, for the most part, the president’s actions.

Trump isn’t just nominating Lee for partisan reasons, either. After all, the man wrote a book about the Constitution. Lee is more comfortable in conservative legal circles than most senators and frames his opposition to progressive legislation or regulation in terms of the constitutional commitment to federalism and a limited national government.

Lee’s constitutionalism has given him something of a civil-libertarian streak: He’s cautiously supportive of sentencing reform; he has attacked both Obama and Trump for engaging in military action without authorization; and his book attacks the National Security Agency’s use of widespread surveillance. That isn’t likely to jibe with a president who doesn’t appear to appreciate any limitations to his power.

But he has plenty of admirers among Washington conservatives. As Vox’s Jane Coaston wrote, “Conservatives reacting to Wednesday’s announcement of Supreme Court Justice Anthony Kennedy’s retirement already have a popular choice for his replacement: Sen. Mike Lee.”

William Pryor

A guide to the 9 likeliest picks to replace Anthony Kennedy

Current position: Federal appellate judge (Eleventh Circuit)

Why Trump picked him: Pryor has been on Trump’s shortlist since a GOP primary debate in February 2016, where he came up as an example of the kind of justice Trump would like to appoint. Pryor, 54, has among the highest profiles of the judges on this list — due to his starring role in the 2005 showdown between President Bush and Senate Democrats over judicial appointments.

He was initially nominated in 2003 and faced fierce opposition for his unusually strident and blunt recitation of conservative dogma. Asked about a statement he made calling Roe v. Wade “the worst abomination in the history of constitutional law,” Pryor said, “I stand by that comment. I believe that not only is [Roe] unsupported by the text and structure of the Constitution, but it has led to a morally wrong result. It has led to the slaughter of millions of innocent unborn children.”

He also, as attorney general of Alabama, wrote an amicus brief urging the Supreme Court to uphold laws banning sodomy and, in the words of then-Sen. Russ Feingold (D-WI), “equated private, consensual sexual activity between homosexuals to prostitution, adultery, necrophilia, bestiality, incest and pedophilia.” He also purposely rescheduled a family trip to Disney World to avoid attending during “Gay Day,” lest his children see gay people enjoying theme park rides.

Pryor eventually got a recess appointment to the 11th Circuit in February 2004, and was finally officially confirmed in 2005 as part of the “Gang of 14” compromise. In his position he’s mostly been a doctrinaire conservative, the most notable exception being a ruling arguing that discrimination against trans people violates the Equal Protection Clause.

Sourse: breakingnews.ie

A guide to the 9 likeliest picks to replace Anthony Kennedy

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