Can I call him a “dark horse” when every news report about Trump’s shortlist includes him? I like the term in this case just because all, and I do mean all, of the chatter on the right since Kennedy’s vacancy has been about Brett Kavanaugh and Amy Coney Barrett, with Kethledge seemingly in the it’s-an-honor-just-to-be-nominated category.
But that may have changed with yesterday’s presidential interviews.
I’m momentarily in the same position vis-a-vis Kethledge as I was with Gorsuch last year — heard his name a few times before, don’t know much about him, but the more I learn the more I like. I also like the fact that I haven’t heard of a single potential landmine that might imperil his confirmation since the shortlist buzz started last week. Fairly or not, Kavanaugh will get dinged for his work on the Ken Starr investigation, as associate counsel in Bush’s White House, and his ObamaCare rulings. Barrett will become the focal point of a nuclear culture-war exchange that will turn exhausting within an hour of Trump calling her name next Monday. But Kethledge? *Relatively* calm waters as far as I can see. No nominee is getting more than 55 votes or so even in a best-case scenario but he might be the man to do it. And he might get the chance. From Bloomberg:
The four, all federal appeals court judges, are Amy Coney Barrett, Brett Kavanaugh, Amul Thapar and Raymond Kethledge, said the people, who were granted anonymity to discuss the interview process. They were the first candidates interviewed for the nomination, which the president said he’ll announce July 9.
Kethledge has impressed those within the White House, the people close to the process said. He was considered for the last Supreme Court vacancy, but didn’t meet with Trump then. On Monday, Trump expressed strongly favorable opinions about him, triggering talk that he’s not a candidate to be ignored.
Kethledge doesn’t have the Harvard/Yale pedigree that POTUS is reportedly seeking but then neither does any other shortlister with the notable exception of Kavanaugh. He is, however, a former Kennedy clerk, just as Gorsuch was; in the legal world, Supreme Court clerkships are the ultimate credential for a young legal talent, much more so than a Harvard or Yale diploma is. Kethledge also has a Rust Belt background as a Michigan grad and current member of the Sixth Circuit. He’s a hunter and fisherman too, another cultural departure from the “coastal elites” who typically dominate the Court. If Trump wants to pay back the people who elected him in 2016, putting a midwesterner on the highest bench is one way to do it.
As for his conservative bona fides, Hugh Hewitt makes the case:
He has stood strongly with free exercise rights, siding for example with a church and its volunteers against the Labor Department’s bureaucrats, writing a separate concurrence to emphasize “The Department should tend to what is Caesar’s, and leave the rest alone.” He has an exemplary record on Second Amendment rights, concurring with his colleague Judge Jeffrey Sutton’s declaration of the right to bear arms as “fundamental” in a crucial en banc case on the amendment. Kethledge has also dissented in a Fifth Amendment takings case from the decision of his colleagues to punt back an aggrieved party to state court in a way he concluded indicated that the court had “lost our constitutional bearings” on property rights.
David Lat at Above the Law is also high on Kethledge, having interviewed him before. He expects Kethledge would charm the Senate during his hearings more than Gorsuch did and notes that he’s the rare appellate judge who writes his own opinions rather than farming them out to law clerks. He also has 10 years of experience on the Sixth Circuit, giving him more practice at the appellate level than any other shortlister save Kavanaugh. There are arguments to be made against Kavanaugh and Barrett (indeed, some of Barrett’s fans are reportedly making the case against Kavanaugh behind the scenes) but what’s the argument against Kethledge? If you can’t find one, why on earth wouldn’t you nominate him? Hewitt thinks we might even see Michigan Democrat Debbie Stabenow, who’s up for reelection this fall, hold her nose and cross the aisle to vote for him. I’m skeptical, although if confirmation looks assured, Stabenow would have nothing to lose by doing so.
There is one knock on Kethledge, actually. Since Sandra Day O’Connor became the first woman justice, three of the Democrats’ five nominees have been women. Over that same period Republicans have made 12 nominations and the only woman among them was Harriet Miers, who ended up withdrawing under intense pressure from the base for a stronger nominee. If it’s a priority for the White House to change that then obviously Kethledge is DOA for now. But if any president is apt to dismiss concerns like this as “political correctness,” it’s Trump. And it’s true, as Lat suggests, that there’ll be intense pressure to fill an eventual Ginsburg vacancy with a woman nominee regardless of which party controls the White House. Trump might gamble that he’ll still be president when that happens and hold off on nominating a woman for now in the expectation that his shortlist for replacing RBG will effectively be nothing but women.
Anyway. In addition to Kethledge, Kavanaugh, Barrett, and Thapar, apparently Mike Lee also met with POTUS yesterday about Kennedy’s seat. That was courteous of the White House, but word through the grapevine is that Lee’s not in serious contention. And we all know why.