Trump’s Most Strategic Pick to replace an outgoing Justice

Opinion Guest Post by: Jed Marshall
Jed is a rising Junior in High School with a serious interest in our nations highest court.

Last week, on Wednesday, June 27th, 2018 Justice Anthony Kennedy announced his retirement from the Supreme Court. The 81-year-old Reagan appointee had served on the nation’s Highest Court for 30 years, and on the 9th Circuit for an additional 13 years prior to that. Pundits, journalists and political activists quickly began speculating as to whom would be Kennedy’s replacement. Many turned to a list of 25 potential Supreme Court nominees that President Trump crafted after the death of Justice Antonin Scalia in early 2016. The President originally created the list to assure conservative voters that then-candidate Trump would appoint a true conservative to the Judicial Branch.

President Trump recently spoke with reporters while on Air Force One, saying he had interviewed five of possible seven candidates from his short list. President Trump planned to interview the remaining candidates prior to making his final decision on July 9th. Most believe the White House has a very short list of candidates that lead to five possible nominees. They are Brett Kavanaugh, of the D.C. Court of Appeals, Amul Thapar and Raymond Kethledge, both of the 6th Circuit, Thomas Hardiman of the 3rd Circuit, and Amy Coney Barrett of the 7th Circuit.

Looking at each of the candidates, they all seem to have fairly different backgrounds: Judge Kavanaugh was a George Bush nominee who received his Juris Degree from Yale. He clerked under Justice Kennedy, the man he could replace. Additionally, he served on the Whitewater investigation under Kenneth Starr, and was one of the main authors of the Starr Report to Congress on the investigations into Monica Lewinsky and Vince Foster.

Judge Hardiman was also a Bush nominee to the court, who worked his way through college as a taxi cab driver. He earned his Juris Degree from Notre Dame, and went on to practice law privately before his appointment. He was President Trump’s other finalist last year when the President was looking for a judge to replace Justice Scalia.

Judge Kethledge, the final Bush appointee on the apparent shortlist, received his Juris Degree from the University of Michigan. Like Kavanaugh, he served as a clerk to Justice Kennedy. He practiced law privately for a decade before nomination to the 6th Circuit.

Judge Barrett was appointed only a year ago by President Trump, and received her Juris Degree from Notre Dame. After graduation, she clerked under the late Justice Antonin Scalia. She returned to the Notre Dame law school in 2002 to teach, and became a Professor of Law in 2010.

Judge Thapar is also a Trump nominee, who received his Juris Degree from UC Berkeley. Prior to his Circuit Court appointment, Thapul has served as both the US Attorney for the Eastern District of Kentucky and a member of that district’s Federal Court (home state of Senate Majority Leader Mitch McConnell). Upon his confirmation to the 6th Circuit, became the second Indian-American to serve on a Circuit Court of Appeals.

Looking at the list , it is easy to say that each of the judges is qualified to be the President’s nominee. Each of the possible nominees have attended some of the nation’s finest schools and have years of legal experience. The group is rather young with Kavanaugh the oldest at only 53, making it likely that any of these judges could easily serve thirty years on the court, as Justice Kennedy did.

President Trump will chose one nominee to go before the Senate for approval to become the next Supreme Court Justice. I have come to the conclusion after thorough research that the most prudent choice for the President would be the nomination of Amy Coney Barrett.

I feel Barrett is the best pick for multiple reasons. The first, and most important one, is confirmation. To successfully be placed on the court, the Constitution requires that the President nominate someone with the “advice and consent of the Senate”. This has been taken to mean a confirmation vote, in which a majority of the Senate must vote in favor of the nominee. Currently, the Republicans hold a slim 50-49 majority in the Upper House of Congress (Senator McCain would make 51 votes, but is currently fighting brain cancer from his Arizona home and likely will be unable to get to the Senate Floor to cast a vote on the nomination). Assuming that no Democrat Senators votes in favor of the nominee, the Republicans need to make every one of their Senators vote “yea” on the nominee. Two female senators, Collins of Maine and Murkowski of Alaska, have expressed some concern as to making sure that whichever nominee is chosen supports the precedent of Roe v. Wade and legalized abortion in the United States. Barrett, as a female nominee, may be able to better address the two Senators’ concern, allowing them to cast a vote in favor of her nomination.

It is very likely, however, that at least three Democrats facing reelection in deep red states this year would also vote for Barrett, or any other Trump nominee. Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Joe Donnelly of Indiana all voted in favor of Justice Gorsuch’s nomination last spring, and, to secure their own reelection, will likely vote in favor of the nominee again, barring something drastic. Barrett, being a long-time resident of the Hoosier state and a graduate of Notre Dame, may also be able to secure Donnelly’s vote better than any other candidate. She also received a “yea” vote last year from Senator Tim Kaine of Virginia, Hillary Clinton’s Vice Presidential candidate in the 2016 election, a vote which could help secure her confirmation.

Another reason for picking Barrett would be the events surrounding her nomination last year to the 7th Circuit. During the Senate Judiciary Committee’s hearing, Senators Feinstein of California and Durbin of Illinois questioned her religion, and suggested it might disqualify her from being able to serve in the position. The California Senator said to Barrett, a devout Catholic, “The dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for years in this country.” This caused outrage among many, and lead some, including the Presidents of Notre Dame and Princeton University, two predominant Christian schools, to accuse Senator Feinstein of imposing a religious test on the nominee. These types of tests are banned by Article IV, Clause 3 of the constitution, and the California senator met massive backlash for her comments.

Should President Trump nominate Barrett to fill Kennedy’s seat, an exchange of a similar attitude is likely to occur. In the event that it does, President Trump and the Republican Party could use it to convince churchgoing voters to come out to the polls in larger numbers for the November midterms. This could help the GOP retain control of the House and the Senate and combat the “Blue Wave” Democrats are hoping to mobilize. Additionally, the nomination could be helpful in convincing more Catholics to move to the Republican party: in the 2016 election, the GOP received the majority of the Catholic vote for the first time in decades. If the Democratic party is seen as attacking someone for their faith, the Republicans could continue the trend, thus gaining more of the Catholic vote.

A third advantage nominee Barrett could bring is another female face to the Republican Party. The Party has occasionally faced allegations of sexism and wrongly labeled one of “old white men”. Trump, similar to Reagan in the 80’s, could nominate a conservative woman to the Highest Court in the Land to help dispel these baseless allegations, and engage a female Republican base. Additionally, having a conservative woman on the court would help in rulings regarding women’s issues. We’ve seen in the recent case of NIFLA v. Bacerra than having five men issuing the decision on a women’s rights issue can cause backlash from activists that support these issues, and having Barrett on the court could help temper some of these. Finally, it is hard to label a woman as against women’s rights, and having her in the conservative block of the Court would be a good counter-message to these accusations.

Fourth, Barrett is the candidate who will likely be able to serve the longest out of the five on the supposed “final list”. At age 46, Barrett is the youngest of the five potential finalists, giving her an edge on the competition. If she chooses to serve until her death, she could serve on the court for forty years, something which President Trump has said he is hoping for in his pick for the seat.

The final advantage I see for nominating Barrett is her recent confirmation to the 7th Circuit. Normally, for a Supreme Court Justice, serving on a lower court longer would be better for your hearings, showing more clearly your judicial philosophy and expanding your qualifications as a jurist, but in Barrett’s case, less is actually more. First, having recently gone through the process, the White House would have an easy time conducting background checks, as it is very unlikely that anything new has come up since her last confirmation. Secondly, with Democrats saying they will try to take any actions possible to stop a Trump nominee from being put on the court, you can expect Democratic members of the Senate Judiciary Committee to do everything in their power to slow down the process, from skipping committee meetings to saying they simply don’t have enough information on the candidate. A nominee that hasn’t faced a congressional confirmation process in recent years could struggle to locate documents, rulings, and provide answers to questions the Committee may request. This is a process that could be quite time consuming and lead to a slower confirmation process. For someone who recently went through the process, however, many of the documents would be easily available and in place with limited new rulings needing to be gathered to answer demands for more information. Additionally, having passed confirmation 55-43 would make if difficult for Senators who voted in favor of Barrett a year ago to justify voting against her when little has changed.

If the Republicans want to get the confirmation process done in the fall before the November midterms, as Senate Majority Leader McConnell has said, it would be wise of the President to pick someone who is already prepared to help counteract the attempts of stalling.

This is not to say that it’s certain that Barrett will be President Trump’s nominee, or that there aren’t advantages to other candidates. There’s no way of telling if the President will pick her over the other 24 candidates on his longer list. He may favor putting Thapar onto the bench, seeing Thapar’s strong textualist views and the fact that he would be the first Indian-American to be seated on the Court. He may pick Kethledge, Hardiman or Kavanaugh for their longer judicial track record and more expansive expression of judicial views. He might not choose any of these five candidates, and instead opt to nominate a dark horse candidate from his expanded list. For now, we must wait until July 9th. We can only speculate as to who his nominee will be, but of the names being floated right now, Barrett seems to be the smartest choice for the President to make.