A Conservative Take on Trump’s New Supreme Court Nominee List

A Conservative Take on Trump’s New Supreme Court Nominee List

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John G. Malcolm /

On May 18, then-future Republican presidential nominee Donald Trump put out a list of 11 individuals, all sitting judges, who he would consider as a potential replacement for Antonin Scalia, who died unexpectedly last February, on the Supreme Court of the United States. Trump has now added 10 new names to that list.

As was the case with his original list, the men and women who have been added appear to be eminently qualified to sit on the high court. Nine of these individuals (Mike Lee, Thomas Lee, Allison Eid, Raymond Kethledge, Joan Larsen, David Stras, Margaret Ryan, Neil Gorsuch, and Steven Colloton) clerked for Supreme Court justices, and several others held distinguished clerkships as well.

Many of them have taught or continue to teach at prestigious law schools. Mike Lee is a sitting U.S. senator, and Charles Canady served four terms in the House of Representatives. While several served as state or federal prosecutors, at least one (Federico Moreno) served as a federal public defender.

One thing that is particularly striking about the Trump list is the geographic diversity and non-federal judicial experience of many of the identified individuals. As Scalia noted in his dissenting opinion in the same-sex marriage case, the current composition of the Supreme Court hardly reflects “a cross-section of America.” He added:

[The] Court … consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count).

Nine of the people on the Trump list, on the other hand, are sitting state supreme court justices from eight different states across the country. Two of them (Diane Sykes and Moreno) sat as state court judges before becoming federal judges. Although not a state court judge, Ryan sits on the Court of Appeals for the Armed Forces, which would likely give her a different perspective from most other federal judges.

Individuals with experience on state courts are less likely to have a jaundiced view of the competency of state court judges, who are sometimes treated like the figurative poor step-child by the federal judiciary. They are also more likely to pay greater heed to issues involving federalism, which also tends to get short shrift by federal legislators and judges.

This is important, for, as Justice Anthony Kennedy stated for a unanimous court in Bond v. United States:

Federalism secures the freedom of the individual.  It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. …  [T]he individual liberty secured by federalism is not simply derivative of the rights of the States.

When it comes to interpreting statutes and the Constitution, a judge must keep uppermost in mind that he or she did not write the text and should not attempt to rewrite that text through creative “interpretation” to mean something quite different from what was intended by its drafters, but which he or she personally considers more fair, wise, or just.

In other words, a judge should interpret the text and structure of a statute or the Constitution, based on the original public meaning of that text at the time it was adopted, and should not, under the guise of statutory or constitutional interpretation, impose on the rest of society his or her own policy predilections based on that judge’s perceptions of contemporary mores. The men and women whose names have been added to the list appear to adhere to this view.

As I wrote in an earlier commentary, which contained my own list of eight individuals (six of whom are on Trump’s list), it is not just the Scalia vacancy that needs to be taken into consideration.

By the time the next president takes the oath of office on Jan. 20, 2017, Justice Ruth Bader Ginsburg will be 83 years old, Kennedy will be 80 years old, and Justice Stephen Breyer will be 78 years old. And while I wish them all continued good health, it is a fact that the average life expectancy in this country is 76.3 years for males and 81.3 years for females. Therefore, it is entirely possible that the next president will get to fill several vacancies on the court over the next four to eight years.

With lifetime appointments, all federal court judges, but most particularly Supreme Court justices, exert substantial influence on the development and application of the law over a long period, often for decades after the president who appointed them has left office.

As a colleague and I stated recently, few presidential elections have featured federal court judges among their top five issues. The Supreme Court’s odious decision in the Dred Scott case was a central theme in the 1860 race between Abraham Lincoln and Stephen Douglas. And several controversial decisions by the Warren Court were front and center in the 1968 faceoff between Richard Nixon and Hubert Humphrey.

This may well be another such year. The next president will have the opportunity to leave a massive imprint on the federal courts for a generation or more.  The stakes are high indeed.

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COMMENTARY BY

Portrait of John G. Malcolm

John G. Malcolm oversees The Heritage Foundation’s work to increase understanding of the Constitution and the rule of law as director of the think tank’s Edwin Meese III Center for Legal and Judicial Studies. Read his research.

 

DONALD J. TRUMP RELEASES LIST OF POTENTIAL UNITED STATES SUPREME COURT JUSTICES

(New York, NY) May 18, 2016 – Today Donald J. Trump released the much-anticipated list of people he would consider as potential replacements for Justice Scalia at the United States Supreme Court. This list was compiled, first and foremost, based on constitutional principles, with input from highly respected conservatives and Republican Party leadership.

Mr. Trump stated, “Justice Scalia was a remarkable person and a brilliant Supreme Court Justice. His career was defined by his reverence for the Constitution and his legacy of protecting Americans’ most cherished freedoms. He was a Justice who did not believe in legislating from the bench and he is a person whom I held in the highest regard and will always greatly respect his intelligence and conviction to uphold the Constitution of our country. The following list of potential Supreme Court justices is representative of the kind of constitutional principles I value and, as President, I plan to use this list as a guide to nominate our next United States Supreme Court Justices.”

Steven Colloton

Steven Colloton of Iowa is a judge of the U.S. Court of Appeals for the Eighth Circuit, a position he has held since President George W. Bush appointed him in 2003. Judge Colloton has a résumé that also includes distinguished service as the U.S. Attorney for the Southern District of Iowa, a Special Assistant to the Attorney General in the Justice Department’s Office of Legal Counsel, and a lecturer of law at the University of Iowa. He received his law degree from Yale, and he clerked for Chief Justice William Rehnquist. Judge Colloton is an Iowa native.

Allison Eid

Allison Eid of Colorado is an associate justice of the Colorado Supreme Court. Colorado Governor Bill Owens appointed her to the seat in 2006; she was later retained for a full term by the voters (with 75% of voters favoring retention). Prior to her judicial service, Justice Eid served as Colorado’s solicitor general and as a law professor at the University of Colorado. Justice Eid attended the University of Chicago Law School, and she clerked for Justice Clarence Thomas.

Raymond Gruender

Raymond Gruender of Missouri has been a judge of the U.S. Court of Appeals for the Eighth Circuit since his 2004 appointment by President George W. Bush. Judge Gruender, who sits in St. Louis, Missouri, has extensive prosecutorial experience, culminating with his time as the U.S. Attorney for the Eastern District of Missouri. Judge Gruender received a law degree and an M.B.A. from Washington University in St. Louis.

Thomas Hardiman

Thomas Hardiman of Pennsylvania has been a judge of the U.S. Court of Appeals for the Third Circuit since 2007. Prior to serving as a circuit judge, he served as a judge of the U.S. District Court for the Western District of Pennsylvania since 2003. Before his judicial service, Judge Hardiman worked in private practice in Washington, D.C. and Pittsburgh. Judge Hardiman was the first in his family to attend college, graduating from Notre Dame.

Raymond Kethledge

Raymond Kethledge of Michigan has been a judge of the U.S. Court of Appeals for the Sixth Circuit since 2008. Before his judicial service, Judge Kethledge served as judiciary counsel to Michigan Senator Spencer Abraham, worked as a partner in two law firms, and worked as an in-house counsel for the Ford Motor Company. Judge Kethledge obtained his law degree from the University of Michigan and clerked for Justice Anthony Kennedy.

Joan Larsen

Joan Larsen of Michigan is an Associate Justice of the Michigan Supreme Court. Justice Larsen was a professor at the University of Michigan School of Law from 1998 until her appointment to the bench. In 2002, she temporarily left academia to work as an Assistant Attorney General in the Justice Department’s Office of Legal Counsel. Justice Larsen received her law degree from Northwestern and clerked for Justice Antonin Scalia.

Thomas Lee

Thomas Lee of Utah has been an Associate Justice of the Utah Supreme Court since 2010. Beginning in 1997, he served on the faculty of Brigham Young University Law School, where he still teaches in an adjunct capacity. Justice Lee was Deputy Assistant Attorney General in the Justice Department’s Civil Division from 2004 to 2005. Justice Lee attended the University of Chicago Law School, and he clerked for Justice Clarence Thomas. Justice Lee is also the son of former U.S. Solicitor General Rex Lee and the brother of current U.S. Senator Mike Lee.

William Pryor

William H. Pryor, Jr. of Alabama is a judge of the U.S. Court of Appeals for the Eleventh Circuit. He has served on the court since 2004. Judge Pryor became the Alabama Attorney General in 1997 upon Jeff Sessions’s election to the U.S. Senate. Judge Pryor was then elected in his own right in 1998 and reelected in 2002. In 2013, Judge Pryor was confirmed to a term on the United States Sentencing Commission. Judge Pryor received his law degree from Tulane, and he clerked for Judge John Minor Wisdom of the U.S. Court of Appeals for the Fifth Circuit.

David Stras

David Stras of Minnesota has been an Associate Justice of the Minnesota Supreme Court since 2010. After his initial appointment, he was elected to a six-year term in 2012. Prior to his judicial service, Judge Stras worked as a legal academic at the University of Minnesota Law School. In his time there, he wrote extensively about the function and structure of the judiciary. Justice Stras received his law degree and an M.B.A. from the University of Kansas. He clerked for Justice Clarence Thomas.

Diane Sykes

Diane Sykes of Wisconsin has served as a judge of the U.S. Court of Appeals for the Seventh Circuit since 2004. Prior to her federal appointment, Judge Sykes had been a Justice of the Wisconsin Supreme Court since 1999 and a Wisconsin trial court judge of both civil and criminal matters before that. Judge Sykes received her law degree from Marquette.

Don Willett

Don Willett of Texas has been a Justice of the Texas Supreme Court since 2005. He was initially appointed by Governor Rick Perry and has been reelected by the voters twice. Prior to his judicial service, Judge Willett worked as a senior fellow at the Texas Public Policy Foundation, as an advisor in George W. Bush’s gubernatorial and presidential administrations, as Deputy Assistant Attorney General in the Justice Department’s Office of Legal Policy, and as a Deputy Attorney General under then-Texas Attorney General Greg Abbott. Justice Willett received his law degree and a master’s degree from Duke.

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