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Possible nominees to replace Anthony Kennedy on the United States Supreme Court

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SCOTUS Vacancy, 2018
Judge Brett Kavanaugh2.jpg
Nominee
Brett Kavanaugh
Retiring Justice
Anthony Kennedy
Vacancy date
July 31, 2018
Confirmation date
October 6, 2018
Coverage

Timeline
Confirmation hearings
Kavanaugh nomination
Process to fill the seat
Kennedy resignation

See also
Brett Kavanaugh
Supreme Court vacancy, 2017
Supreme Court of the United States

On June 27, 2018, Justice Anthony Kennedy announced he was retiring from the Supreme Court of the United States effective July 31, 2018. In an official release, Kennedy cited a desire to spend more time with his family as the reason for his retirement.[1] Kennedy was considered by many to be the court's swing vote, often casting the deciding vote between the court's more conservative and liberal members. He authored a number of noteworthy opinions: Obergefell v. Hodges, Citizens United v. Federal Election Commission, and ''Planned Parenthood of Southeastern Pa. v. Casey.

President Donald Trump (R) nominated Brett Kavanaugh to succeed Kennedy on the Supreme Court on July 9, 2018. This was the second Supreme Court nomination of his presidency.[2] Trump said on June 27, 2018, that his pick would come from the list of 25 he originally released in November 2017. He spoke with seven total nominees between July 2 and 5.[3] Potential nominees identified as having met or spoken with the President included Brett Kavanaugh, Raymond Kethledge, Amul Thapar, Amy Coney Barrett, Thomas Hardiman, Joan Larsen, and Sen. Mike Lee (R-UT).

For more on the 2018 vacancy, see Supreme Court vacancy, 2018: An overview

Possible nominees

The names below appeared on a list of 25 potential Supreme Court nominees released in November 2017. On June 27, 2018, Trump stated that Anthony Kennedy's successor would come from this list:[4]

2018 Potential Supreme Court nominees
Name Current Position Year Nominated Nominated By Age on 6/30/2018 Undergraduate institution Law school
Amy Coney Barrett United States Court of Appeals for the 7th Circuit 2017 Donald Trump (R) 46 Rhodes College Notre Dame Law School
Keith Blackwell Georgia Supreme Court 2012 Gov. Nathan Deal (R) 42 University of Georgia University of Georgia School of Law
Charles Canady Florida Supreme Court 2008 Gov. Charlie Crist (R) 64 Haverford College Yale Law School
Steven Colloton United States Court of Appeals for the Eighth Circuit 2003 George W. Bush (R) 55 Princeton University Yale Law School
Allison Eid United States Court of Appeals for the 10th Circuit 2017 Donald Trump (R) 53 Stanford University University of Chicago Law School
Britt Grant Georgia Supreme Court 2016 Gov. Nathan Deal (R) 40 Wake Forest University Stanford Law School
Raymond Gruender United States Court of Appeals for the Eighth Circuit 2004 George W. Bush (R) 54 Washington University of St. Louis Washington University of St. Louis
Thomas Hardiman United States Court of Appeals for the 3rd Circuit 2007 George W. Bush (R) 52 University of Notre Dame Georgetown University Law Center
Brett Kavanaugh United States Court of Appeals for the D.C. Circuit 2006 George W. Bush (R) 53 Yale College Yale Law School
Raymond Kethledge United States Court of Appeals for the 6th Circuit 2008 George W. Bush (R) 51 University of Michigan University of Michigan Law School
Joan Larsen United States Court of Appeals for the 6th Circuit 2017 Donald Trump (R) 49 University of Northern Iowa Northwestern University School of Law
Mike Lee (R) United States Senator from Utah - - 47 Brigham Young University Brigham Young University School of Law
Thomas Lee Utah Supreme Court 2010 Gov. Gary Herbert (R) 53 Brigham Young University University of Chicago Law School
Edward Mansfield Iowa Supreme Court 2011 Gov. Terry Branstad (R) 61 Harvard University Yale Law School
Federico Moreno United States District Court for the Southern District of Florida 1990 George H.W. Bush (R) 66 University of Notre Dame University of Miami School of Law
Kevin Newsom United States Court of Appeals for the Eleventh Circuit 2017 Donald Trump (R) 45 Samford University Harvard Law School
William Pryor United States Court of Appeals for the Eleventh Circuit 2004 George W. Bush (R) 56 Northeast Louisiana University Tulane University Law School
Margaret Ryan United States Court of Appeals for the Armed Forces 2006 George W. Bush (R) 54 Knox College Notre Dame Law School
David Stras United States Court of Appeals for the Eighth Circuit 2017 Donald Trump (R) 43 University of Kansas University of Kansas School of Law
Diane Sykes United States Court of Appeals for the 7th Circuit 2004 George W. Bush (R) 60 Northwestern University Marquette University Law School
Amul Thapar United States Court of Appeals for the 6th Circuit 2017 Donald Trump (R) 49 Boston College University of California at Berkeley School of Law
Timothy Tymkovich United States Court of Appeals for the 10th Circuit 2003 George W. Bush (R) 61 Colorado College University of Colorado Law School
Robert Young Michigan Supreme Court (retired) 1999 Gov. John Engler (R) 67 Harvard University Harvard Law School
Don Willett United States Court of Appeals for the Fifth Circuit 2017 Donald Trump (R) 51 Baylor University Duke University School of Law
Patrick Wyrick Oklahoma Supreme Court 2017 Gov. Mary Fallin (R) 37 University of Oklahoma University of Oklahoma College of Law

Opinions on the nominees

This section tracked editorials and statements made by elected officials and media figures regarding which possible nominee President Trump should choose, as well as noteworthy issues surrounding the possible nominees.

Elected officials

In a interview with Fox News on June 27, Ted Cruz said,

“ I think the single best choice that President Trump could make to fill this vacancy is Senator Mike Lee. I think he would be extraordinary...I know beyond a shadow of a doubt that Mike Lee would be faithful to the Constitution and Bill of Rights, that he’s not going to evolve.[5][6] ”

The Lexington Herald Leader reported that Mitch McConnell encouraged President Trump to choose Judge Amul Thapar as a Supreme Court nominee. McConnell said,

“ I think he's [Thapar] absolutely brilliant, with the right temperament. But others have their favorites. And I have no idea who the president may choose.[7][6] ”

In an interview with CNN on July 1, Tim Scott said,

“ I’m going to recommend Trey Gowdy be one of the folks that I would have a strong recommendation for him serving on the Supreme Court. I hope that the President will be open to that recommendation.[8][6] ”

Op-eds and editorials

  • Ilya Shapiro, writing for The Washington Examiner:
“ President Trump has many great choices for the Supreme Court and in other circumstances I might be writing about one of them. But if he decides to nominate Thapar, the nation will get a young, charismatic, personable, textualist and originalist who could serve on the court for three decades or more.[9][6] ”
  • Hugh Hewitt, writing for The Washington Post:
“ He [Kethledge] 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.[10][6] ”
  • Ramesh Ponnuru, writing for Bloomberg:
“ The main reason I favor [Amy Coney] Barrett, though, is the obvious one: She’s a woman. It may be that in an ideal world, the sex of a Supreme Court nominee would not matter. But opposing a woman will probably be more awkward for senators than opposing a man would be. Also, it cannot be good for conservatism that all three women now on the court are liberals. If Roe v. Wade is ever overturned — as I certainly hope it will be, as it is an unjust decision with no plausible basis in the Constitution — it would be better if it were not done by only male justices, with every female justice in dissent.[11][6] ”
  • Ruth Marcus, writing for Real Clear Politics:
“ Which is why, notwithstanding this final, disappointing term, his [Kennedy's] departure is so alarming. And why this must be another Bork moment -- insisting on a nominee that is, to invoke the language of the Bork debate, within the broad mainstream of judicial thought.

And one who, like swapping Kennedy for Powell, will not radically alter the balance of the court. A nominee should be considered on his or her merits, primarily, but it is politically naive and, I think, substantively mistaken not to take into account the impact of that nominee's views on the overall balance of the institution.[12][6]

”
  • Matthew Walther, writing for The Week:
“ If any more proof were necessary of the steeliness of Barrett's character, it is worth pointing out that she has managed to have a successful career as a scholar and teacher while raising seven children. Out of 113 Supreme Court justices in our nation's history, only four have been women, and I for one think we are due for another...Finally, there is something to be said, I think, for the idea of having someone who did not attend an Ivy League law school on the Supreme Court for a change. Gifted as the faculty and alumni of Harvard and Yale no doubt are, it is difficult to think that the accidents by which a small fraction of would-be American lawyers happen to receive instruction from these august personalities are an exhaustive test of one's ability to interpret statutes.[13][6] ”
  • Alberto R. Gonzales, writing for USA Today:
“ The president should nominate someone with a record of achievement and excellence in the profession that one would expect of a Supreme Court justice. The president is also likely to nominate someone between the ages of 45 and 55 years, someone old enough to have a record of accomplishments, yet young enough to serve on the court for a substantial number of years and influence the court’s jurisprudence over generations.[14][6] ”

Some Republicans critical of Kavanaugh's inclusion on list of nominees

Politico reported on July 4 that some Republicans criticized the inclusion of Justice Brett Kavanaugh on the list of potential Supreme Court nominees to replace Anthony Kennedy. Kavanaugh was said to be the top choice of White House counsel Don McGahn, whose backing helped the judge's inclusion on the list in November 2017.[15]

Prior to his selection, Sen. Ted Cruz (R) opposed Kavanaugh. Politico reported that Cruz said Kavanaugh would be unreliable to conservatives. According to the article, Cruz “has worked to bolster the prospects of his colleague, Sen. Mike Lee (R-Utah)."[15]

Politico also reported that Kavanaugh's critics disseminated "negative details and assessments of his record in an effort that more closely resembles a political campaign than a court nomination." Their criticisms included his ties to former President George W. Bush, a 2011 ruling which they said aided the Supreme Court in passing the Affordable Care Act, and a friendship with former 9th Circuit Judge Alex Kozinski, who retired in December 2017 after sexual harassment allegations.[15]

Kavanaugh's former clerk Travis Lenkner said "Judge Kavanaugh’s 12-year record of more than 300 opinions on issues of national importance speaks for itself. What you’re seeing are efforts by many fair, respected conservatives who are not advocating for one person over another who are going out of their way to ensure that the record is clear and accurate about Judge Kavanaugh."[15]

Kavanaugh's former student and author J.D. Vance said "He’s obviously brilliant and a great judge. But to me, for a job like this, integrity and backbone are the most important qualities. And he’s got those in spades."[15]

Barrett among top nominee choices, faces opposition from Democrats

Amy Coney Barrett was identified as one of President Trump's top choices as a nominee. Her possible selection drew support from conservatives and opposition from Democrats.

Senate Minority Leader Chuck Schumer (D) said "The bottom line: Judge Barrett has given every indication that she will be an activist judge on the Court. If chosen as the nominee, she will be the deciding vote to overturn Roe v. Wade and to strike down pre-existing conditions protections in the ACA."[16]

Democratic opposition also pointed to Barrett's legal writings on stare decisis, the legal principle that precedents, previously argued cases and court decisions, are to be followed by subsequent courts. Barrett has written that stare decisis “is not a hard-and-fast rule in the court’s constitutional cases.”[17]

“The public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle,” Barrett wrote.[17]

Ramesh Ponnuru, a senior editor for National Review, wrote a Bloomberg op-ed arguing Barrett should be Trump's choice. "Opposing a woman will probably be more awkward for senators than opposing a man would be," he said. He added if the Supreme Court was going to vote to overturn Roe v. Wade, "it would be better if it were not done by only male justices, with every female justice in dissent."[18]

Jay Wexler, a Boston University law professor who clerked for Justice Ruth Bader Ginsburg alongside Barrett, said Barrett was "was very, very smart. Not at all ideological." Wexler added, "I take her at her word that she will try as hard as anyone can to bracket the views she has as she decides cases.”[19]

Possible nominees' views on the administrative state

See also: Possible 2018 U.S. Supreme Court nominees' views on the administrative state

The New Civil Liberties Alliance (NCLA), a public interest law firm that, according to its website, aims at protecting what it calls "constitutional liberties from systemic threats, primarily the administrative state", published an assessment of potential replacements for Justice Anthony Kennedy based on how each of them approached questions about the administrative state.[20][21] To learn more about those assessments, see here.

Noteworthy issues

Network plans to spend millions supporting nominee

A network of organizations plans to spend millions in support of the Supreme Court nominee. The groups, including Americans for Prosperity, Freedom Partners, and Concerned Veterans, also spent millions supporting the confirmation of Gorsuch. Sarah Field, vice president for judicial strategy at Americans for Prosperity, said the group would support any candidate on Trump’s list of 25. “We’re impressed with the whole list,” she said. “The president has a great record of picking judges with a fidelity to the Constitution.”[22]

Demand for Justice plans to spend $5 million opposing nominee

The group Demand Justice, formed on June 28 and led by former Hillary Clinton campaign staffer Brian Fallon, plans to spend $5 million opposing President Trump's pick for a Supreme Court nominee. Fallon tweeted: “The next SCOTUS pick should await the next election, but McConnell won't wait. The future of the Court for the next 40 years - and thus the fate of abortion rights, and the ACA - may be decided in the next 3 months.”[23]

Demand Justice began running TV and digital ads on July 5 and will invest in voter mobilization, according to Politico.[24]

The ad campaign is targeting Maine and Alaska, homes to moderate Republican Senators Susan Collins and Lisa Murkowski, who are facing pressure by those opposing Trump's potential nominees to vote against the President's choice. The ads focus on comments Trump made in October 2016, where he said he would appoint Supreme Court justices who would overturn Roe v. Wade.[24][25][26]

“Senator Susan Collins could be the deciding vote on Trump’s pick for justice. She claims to support a woman’s right to have an abortion, so why won’t she rule out voting for Trump’s anti-choice picks?” one ad says.[25]

See also

Footnotes

  1. ↑ Supreme Court of the United States, "Press Releases," June 27, 2018
  2. ↑ Twitter, "Donald Trump on Twitter," June 27, 2018
  3. ↑ Associated Press, "As Trump weighs options, Pence meets with court contenders," July 5, 2018
  4. ↑ CBS News, "Trump says Justice Kennedy's replacement will come from list of 25," June 27, 2018
  5. ↑ The Hill, "Cruz: Mike Lee best choice to fill Supreme Court vacancy," June 27, 2018
  6. ↑ 6.0 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  7. ↑ Lexington Herald Leader, "McConnell touts Thapar for Supreme Court seat," June 30, 2018
  8. ↑ Roll Call, "Scott Will Recommend Gowdy for Supreme Court Vacancy," July 2, 2018
  9. ↑ Washington Examiner, "Trump should take a serious look at Amul Thapar for the Supreme Court," July 5, 2018
  10. ↑ The Washington Post, "Here’s who Trump should pick for the Supreme Court," July 2, 2018
  11. ↑ Bloomberg, "Kennedy’s Replacement Should Be Judge Amy Coney Barrett," June 28, 2018
  12. ↑ Real Clear Politics, "This Must Be Another Bork Moment," June 28, 2018
  13. ↑ The Week, "Amy Barrett for the Supreme Court," July 2, 2018
  14. ↑ USA Today, "Justice Anthony Kennedy's replacement should be young, conservative and swiftly confirmed," June 27, 2018
  15. ↑ 15.0 15.1 15.2 15.3 15.4 Politico, "Trump’s Supreme Court search unleashes fierce politicking," Updated July 5, 2018
  16. ↑ Twitter, "Chuck Schumer on Twitter," July 2, 2018
  17. ↑ 17.0 17.1 The Hill, "Coney Barrett emerges as favorite on right, target for left," July 6, 2018
  18. ↑ Bloomberg, "Kennedy’s Replacement Should Be Judge Amy Coney Barrett," June 28, 2018
  19. ↑ Chicago Tribune, "Potential Trump Supreme Court pick Barrett: Catholic Chicago judge stirs abortion debate," July 5, 2018
  20. ↑ New Civil Liberties Alliance, "NCLA Ranks the Short List of Candidates to Replace Justice Kennedy," July 6, 2018
  21. ↑ "New Civil Liberties Alliance", "About the Organization," accessed July 9, 2018
  22. ↑ Huffington Post, "Koch Network Plans To Spend Millions Backing Trump’s Court Pick," Updated June 27, 2018
  23. ↑ Fox News, "Clinton-tied group launches Supreme Court pressure campaign against GOP senators," July 5, 2018
  24. ↑ 24.0 24.1 Politico, "Liberal group launches $5 million push against Trump’s SCOTUS pick" July 2, 2018
  25. ↑ 25.0 25.1 Washington Examiner, "Liberal group pressures Collins, Murkowski to defend abortion, reject Trump's Supreme Court pick," July 5, 2018
  26. ↑ CNBC, "Trump: I'll appoint Supreme Court justices to overturn Roe v. Wade abortion case," October 29, 2016
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