WSJ on SCOTUS: And then there were three

Or maybe two, but Allahpundit will get to that in a little bit. According to the Wall Street Journal and corroborated by Robert Costa at the Washington Post, the search for the next Supreme Court justice has narrowed even further from the short list of five-to-eight candidates. The short-short list comprises the three archetypes of the strategies open to Donald Trump:


President Donald Trump’s search for a Supreme Court justice to succeed Anthony Kennedy is focusing on a trio of federal judges, with a decision expected this week in anticipation of an announcement on Monday, people familiar with the search said.

Following a brisk round of interviews Monday and Tuesday, the three front-runners at this late stage in the president’s search are all U.S. appeals court judges: Brett Kavanaugh of Maryland, of the D.C. Circuit; Raymond Kethledge of Michigan, of the Sixth Circuit; and Amy Coney Barrett of Indiana, of the Seventh Circuit. …

A central tension is whether to base the selection primarily on a dispassionate review of judicial records and written rulings, or on a candidate’s biography and the personal chemistry Mr. Trump feels during the interviews, people close to the White House said.

Some want to see the president follow the model used in picking Neil Gorsuch for the court in 2017, a process that leaned heavily on judicial writings in the belief that is the best way to predict a judge’s behavior on the bench.

The differences between these potential nominees took up quite a bit of the time during my guest-hosting stint this morning for Hugh Hewitt. Ed Whelan in particular warned conservatives not to lose the forest for the trees when it comes to these three, or the others on the earlier short list.  All of them are solid conservative choices, and all of them will pursue the originalist thinking that guided the decisions of the late Antonin Scalia. While some might prefer one more than the others, it’s important not to fall into the trap of bitter campaigning by maligning the competitors.


Given that all three appellate-court jurists have solid credentials for the job, the differences mainly relate to the politics of confirmation. In that context, it makes sense for these three to wind up as the “finalists,” assuming that the WSJ has this correct. Amy Coney Barrett is the provocative choice, aiming to create a political firestorm in order to benefit Trump in the midterms by baiting Democrats into more attacks on religious faith. Raymond Kethledge is the from-the-heartland outsider,  an intellectually unassailable candidate designed to defang the opposition by providing them no purchase for political attacks — and to pressure Midwestern Senate Democrats. Brett Kavanaugh is a blend of the two, with extensive experience on the bench but enough of a background in politics and in clearly conservative opinions to set up some sort of fight in the confirmation hearings.

One thing is certain — it’s a list long on jurisprudential heft. Some, however, insist on seeing this as a beauty pageant, as Politico suggests:

After meeting Marie Louise Gorsuch and picking up on the easy chemistry between the homemaker and her husband, President Donald Trump requested that she stand next to Neil Gorsuch during his nomination speech to the Supreme Court.

Trump’s delight in what he considered the picture-perfect couple, recounted by a Republican close to the White House familiar with the proceedings, is now resurfacing as the process of filling a second Supreme Court opening plays out like a political campaign, with attention to the whole package, including a potential nominee’s appearance as well as the look and feel of his or her family.

The process has elite lawyers gaming out what attributes — even those that have nothing to do with a person’s qualifications to sit on the nation’s highest court — might vault a candidate to the top of Trump’s list, and weighing them against the traditional qualifications for the role. What is emerging is a process unique to Trump as potential nominees are increasingly running two different campaigns: one aimed at the president and one aimed at senators.

“Beyond the qualifications, what really matters is, does this nominee fit a central casting image for a Supreme Court nominee, as well as his or her spouse,” the Republican close to the White House said. “That’s a big deal. Do they fit the role?”


New York Magazine followed up by suggesting that the process has been nothing more than a beauty pageant:

President Trump has made no secret of how important appearance is to his hiring process. Trump has often remarked that his nominees just look right for their respective roles, and he’s fond of the phrase “central casting.” When considering Mitt Romney for Secretary of State, he said he “looks the part of a top diplomat right out of ‘central casting.’” In a speech to the National Governors Association he said of Vice President Mike Pence, “He’s a real talent, a real guy. And he is central casting, do we agree? Central casting.” He even used the phrase when referring to military leaders at a post-inauguration lunch, adding, “If I’m doing a movie, I’d pick you General, General Mattis.”

Therefore, it’s unsurprising to hear that as Republican officials consider which potential Supreme Court nominees will face an easier confirmation battle in the Senate, poring over their legal writings, Trump is thinking about more superficial matters.

Ahem. The finalists, even in the longer short list reported last week, were all jurists on the appellate court. The three mentioned here have significant track records on the bench. Optics clearly matter, as they do in every nomination where Senate hearings will get a lot of attention and television coverage, but a pretty face or superficial mien has clearly not driven the selection process thus far. And, for that matter, it didn’t in the choice of Secretary of State, either … not unless one thinks Rex Tillerson is somehow prettier than Mitt Romney.


The silly season remains upon us, but regardless, these are serious nominees. The final choice will have a lot more to do with strategy than beauty pageants.

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