There’s just no way. Not the part about Trump putting him on the Court; obviously that’s not happening. I mean there’s no way Napolitano could possibly believe it might happen. Whoever whispered this to Politico is clearly trying to make him look like a rube, possibly to retaliate for the headaches he caused Fox News and the White House with his dubious “the GCHQ spied on Trump for Obama” claim.
“He said, ‘Trump said I’m on the list,’” said a source who spoke with Napolitano shortly after one of his meetings with the then president-elect. “He’s been saying that since the transition.”
Friends warned Napolitano not to take the president too literally – or seriously. “He’ll take your call and invite you to the Oval Office, but he just wants you to say nice things about him on TV,” the source says he told Napolitano at the time. But that didn’t sink the ambitious judge’s hopes…
But the salt-and-pepper-haired Napolitano, 66, who served as a New Jersey Superior Court judge until 1995 and joined Fox News in 1998, was a sleeper candidate, he told his skeptical friends. He claims he’s submitted both academic and personal resumes to Trump aides, and that they’ve pored over the judge’s writings, including several popular non-fiction books…
Since the Gorsuch nomination, Napolitano has continued to maintain that he is in the running for a seat, telling a colleague that Trump promised him the next Supreme Court seat “if I get another one.”
Trump being Trump, the chances that he’d pull an ex-judge off of Fox News and try to stick him on the Supreme Court aren’t quite zero — but they’re close. A source close to the White House told Politico, “The president already has a list of highly qualified contenders for future SCOTUS openings, and Judge Napolitano is not on it.” Which is true, undoubtedly, for a good half-dozen reasons.
Reason one: Napolitano is 66 years old. No president has offered a SCOTUS vacancy to someone of that age since FDR made 68-year-old Harlan Stone chief justice in 1941 — and Stone had already been on the Court for 16 years at that point. Charles Evans Hughes, who became chief justice at the age of 67 in 1930, had also previously served on the Court for six years before resigning to run for president. He went on to serve as Secretary of State before his second nomination to the bench. Given the power of lifetime appointments, presidents understandably prefer younger people as nominees. Merrick Garland was 63 when Obama nominated him, but his age was partly a concession to the fact that the GOP controlled Congress and Obama knew an older Democrat might stand a slightly better chance of drawing GOP votes. Trump doesn’t have that problem, so why would he choose Napolitano over some 50-year-old somewhere?
Reason two: Napolitano doesn’t have a traditional SCOTUS resume. He served as a state superior court judge for eight years in the late 80s and early 90s and has taught law for years since then, but in the modern era you typically need a high appellate pedigree to be nominated to the Court, whether as a federal appellate judge, state supreme court justice, or solicitor general (informally known as SCOTUS’s “10th justice” because of their practice before the Court). Of the 21 people on Trump’s Supreme Court shortlist, 18 are federal appellate judges or state supreme court justices, two are federal trial judges, and one is a U.S. senator (Mike Lee). Napolitano would be way outside the box. Granted, if ever there was a president who’d prefer an “outside the box” choice to a traditional one, it’s Trump. But the last time a Republican president offered a Court seat to an outside-the-box choice, we got the Harriet Miers debacle. Why would Trump’s advisors sit by and risk a reprise of that when they’ve got 20 other candidates to choose from?
Reason three: Napolitano is a hardcore libertarian. Trump is … not. In critical ways, he’s the opposite — a law-and-order populist who relishes his image as a strongman. It’s possible that Justice Napolitano would go in the tank for the White House on the bench and rubber-stamp whatever Trump wants to do, but it’s more likely that he’d stand on principle and strike down any number of aggressive executive measures as unconstitutional. If Trump ever changes his mind on waterboarding and decides to give it a go, for instance, Napolitano seems like a safe bet to vote with the liberals to block him. Why would Trump, the ultimate big-government Republican, nominate a guy whose entire brand as a legal commentator is questioning federal power?
Reason four: Uhhhhh, there’s no way Napolitano would get confirmed, even if McConnell ends up nuking the filibuster to confirm Gorsuch. Democrats aren’t voting to confirm a libertarian Fox News commentator; Republican hawks aren’t voting to confirm an outspoken skeptic of war-on-terror natsec policies. And then there’s this little matter:
What a confirmation hearing that would be. Needless to say, with nearly 20 years of commentary on Fox under his belt, that’s not the only questionable thing Napolitano has said into a mic. He would have been Borked easily even before the GCHQ thing, but after that debacle and the endless talking points it would inevitably produce during a confirmation battle about his “judgment,” he might not even pull 40 votes in the Senate. And the Trump White House, which gave up on ObamaCare after 63 days of half-hearted effort, isn’t going to spend a similar amount of time on a similarly futile effort to get Trump’s Fox green-room buddy on the Supreme Court.
But then, as I say, a smart guy like Napolitano surely understands all of this. Whoever’s feeding this story to Politico isn’t relaying actual quotes, I’m sure, but rather settling a score by painting him as a sucker — or, worse, as corrupt. After all, although never clearly stated, by spotlighting Napolitano’s alleged career ambitions so soon after the GCHQ fiasco, Politico clearly means to imply that he might have invented the GCHQ story to give Trump some cover on his “Obama wiretapped me!” tweets, in hopes of being rewarded with a Supreme Court seat. Quid pro quo! But that’s preposterous. He’d never be nominated and he knows it.
Anyway. That wasn’t quite half a dozen reasons, as it turns out, but close enough.