When Fred Barnes and NBC agree, there must be some kind of harmonic convergence in credibility, right? If so, then Mike Lee and his brother Thomas might find themselves on the outside looking in on Donald Trump’s short list of candidates to succeed Anthony Kennedy on the Supreme Court. Both Barnes and Pete Williams get the same five names from their sources:
- Brett Kavanaugh, DC Circuit Court of Appeals
- Amul Thapar, 6th Circuit Court of Appeals
- Amy Coney Barrett, 7th Circuit Court of Appeals
- Thomas Hardiman, 3rd Circuit Court of Appeals
- Raymond Kethledge, 6th Circuit Court of Appeals
If this is the short list, it’s remarkably conventional. The common thread of jurists is no accident either, says one Trump adviser:
Leonard Leo, who has taken a leave of absence from the conservative Federalist Society to help in the selection process, said the nominee will be a judge.
“It will certainly be someone with a demonstrated judicial record,” Leo said.
That would tend to exclude Mike Lee. Don’t be too sure about that, Bloomberg reported this morning:
President Donald Trump has asked advisers their opinions about nominating Utah Senator Mike Lee to replace Justice Anthony Kennedy on the Supreme Court, according to three people familiar with the matter. …
Trump thinks Lee would be easily confirmed by the Senate, but the president has expressed concern about keeping his Senate seat in Republican hands, one person said. All of the people spoke on condition of anonymity to describe private deliberations.
He has been assured the seat will remain safely Republican, the person said. Trump complained that he was told the same about the Alabama Senate seat held by Attorney General Jeff Sessions, who wound up replaced by Democrat Doug Jones.
Assuming that Barnes and Williams are hearing this correctly and/or Leo is right, the list is not too surprising, except for one name: Raymond Kethledge. As Barnes notes, he’s not exactly well known:
Raymond Kethledge, 51, grew up in Michigan and is a George W. Bush appointee to the 6th Circuit Court of Appeals. He is less well-known in judicial circles than the others and thus is the dark horse in the group.
Kethledge didn’t get a lot of attention in the ramp-up to the nomination of Neil Gorsuch, unlike Hardiman and Thapar. Kavanaugh has had a high profile among conservatives for some time, well preceding Trump’s time in office or on the campaign trail. Barrett got lots of attention during her confirmation hearing, when Dianne Feinstein made the unfortunate mistake of targeting her Catholic faith by noting that the “dogma lives loudly within you.” Dick Durbin later followed up and made it even worse:
If Trump wants a nominee to “own the libs,” then Barrett’s his best choice. It would certainly give Senate Democrats another opportunity to offend tens of millions of Catholic voters in the run-up to the midterms, a potential that shouldn’t be overlooked. Barrett, however, might put the nomination afoul of Susan Collins and Lisa Murkowski, the two pro-choice Republicans who derailed the ObamaCare repeal over the defunding of Planned Parenthood. Trump has other choices available to him that have a better chance of winning all 50 Republicans in the Senate. He took that seriously enough with Gorsuch, and he’s probably inclined to take it seriously now.
Kethledge might be a wild card, too. His most notable recent case was Carpenter, the case decided at the end of the Supreme Court’s term. It was Kethledge’s majority opinion that got reversed by John Roberts, with a notable sorta-dissent from none other than Neil Gorsuch. Kethledge might get some pushback from Rand Paul and perhaps even Mike Lee for failing to recognize the 4th Amendment issues that the Supreme Court found determinative in Carpenter, even while many conservatives found it puzzling. At 52, though, Kethledge is the right age, and eight years of service on the appellate circuit certainly makes him appealing.
Hardiman, Thapar, and Kavanaugh have had significant review in the past, and would likely pass muster among Republicans without providing unnecessary ammunition to Senate Democrats. It’s worth noting the absence of William Pryor on these lists, a conservative favorite whose earlier statements about Roe would have made for a memorable afternoon or two in the Senate Judiciary Committee hearing. Thapar has the shortest tenure on an appellate circuit (other than Barrett), taking his seat on that bench thirteen months ago. He’d be a nominee of color, which would certainly help Trump and Senate Republicans politically, but his short track record on appeals might raise concerns over his conservative tenacity, too. However, in one notable case from his tenure on the district court, Thapar used a terror statute to keep three protesters at a Tennessee nuclear facility imprisoned until sentencing, then sentenced all of them to 35 months in prison — including an 84-year-old nun. That will certainly get the attention of Senate Democrats in a confirmation hearing.
Kavanaugh’s probably the best positioned, having had a lengthy tenure at the DC Circuit. His rulings on the Clean Water Act and CFPB will raise the ire of Democrats, but they’re what makes him attractive to Republicans too. However, don’t rule out Hardiman, who has also had a significant tenure at the appellate circuit and who works with Trump’s sister to boot. He was good enough to be runner-up to Gorsuch, and might just make the cut on that basis alone.
Of course, this doesn’t mean that the eventual nominee will certainly be one of these five. There are others on the list who would fit the bill — Margaret Ryan and her 12 years on the Armed Forces Circuit Court of Appeals would be an attractive candidate, for instance. But this isn’t a bad short list at all from which to choose.