Donald Trump has released a list of potential Supreme Court nominees that seems designed to placate his conservative critics. It suggests the presumptive Republican nominee has no interest in breaking the mold when it comes to the lifetime appointments on the court.
It is a safe list. All are sitting judges nominated by Republicans, some on federal and some on state courts. All appear to be white; seven are men, and four are women. And all 11 are listed as experts on website of the conservative Federalist Society, a key legal arbiter for the right.
Five of the 11 are state Supreme Court justices, which do not have to be confirmed by the U.S. Senate and thus often fly relatively under the radar. All of the federal judges were appointed by President George W. Bush.
The list also provides a stark contrast to the judicial philosophy already outlined by Democratic front-runner Hillary Clinton, though she has named no names. Presidential candidates usually speak in more general terms and don't issue actual lists, but Trump bears the burden of proving to conservatives that he won't crush their dreams of a lifetime appointment who shares their values. For example, one potential nominee, William Pryor, referred to the 1973 Roe v. Wade decision, which recognized a right to abortion nationwide, the “worst abomination in the history of constitutional law.”
As for Trump's own judicial philosophy, in the second of three positions he took in a single day on abortion, Trump himself said the issue "should be put back to the states for determination," a rough approximation of some conservatives' critique of Roe. Trump, whose sister is a federal judge, also seemed unclear on the role of judges when he said she had "signed that bill." (Judges rule on questions of law and do not sign bills.) He also said of his potential Supreme Court picks, "I would wanna see scholars, but I think more than my asking, I would go on references of other people that I respect. Because that is not necessarily my world. I’m very much into the world of legal and legality. But, that is not my world, so I would go to people that I have great respect for and say, 'Who do you recommend?'”
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Members of the conservative movement have been skeptical. In March, conservative columnist George Will warned his fellow conservatives that Donald Trump could not be trusted with the Supreme Court. “There is every reason to think that Trump understands none of the issues pertinent to the Supreme Court’s role in the American regime, and there is no reason to doubt that he would bring to the selection of justices what he brings to all matters — arrogance leavened by frivolousness,” Will wrote.
Will may be relieved today. Texas state Supreme Court Justice Don Willett, on Trump’s list, is a judge Will declared should be the next Republican president’s nominee in a column last year. The reason for Will’s praise: Willett’s embrace in an opinion of the concept of “economic liberty,” which would potentially threaten many regulations of business passed in the name of health and safety, but which conservatives say simply harm competition.
Whether Willett welcomes Trump’s favor is an open question. Last June, the prolific tweeter offered the following haiku: “Donald Trump haiku— Who would the Donald Name to #SCOTUS? The mind reels. *weeps—can't finish tweet*.”
On a more serious note, Willett is a proponent of “judicial engagement.” In contrast to the long-dominant language among Republicans that judges should exercise restraint in striking down democratically enacted laws — rather than being so-called “activist judges — Willett declared in 2010 that “there is a profound difference between an activist judge and an engaged judge." That means more readiness to strike down laws that the judge perceives to violate constitutional principles.
Here, a primer on the rest of the names:
Steven Colloton: A federal judge on the 8th Circuit U.S. Court of Appeals, Colloton clerked for former Supreme Court Chief Justice William Rehnquist. Collotn also worked for Independent Counsel Kenneth Starr and in the George W., Bush Justice Department’s Office of Legal Counsel. Friends have described Colloton as a “virtual walking encyclopedia of the law.” But several rulings he has written or supported, including one that allowed religious institutions to avoid providing contraception coverage under Obamacare, have angered progressives. In one case, Colloton voted to uphold a South Dakota law that advised women having abortions that they were at increased risk of suicide. Colloton wrote a separate opinion to underscore that he was not persuaded by the evidence, including an American Psychological Association task force. He also has dissented from a string of 8th Circuit rulings that have protected the rights of employees, consumers and other groups. In one dissent, he argued that a city’s policy of using police dogs to bite and hold suspects without warning did not violate the Constitution.
Allison Eid: Eid sits on Colorado’s Supreme Court, and is a former clerk to Supreme Court Justice Clarence Thomas, as well as a former Colorado solicitor general. As a state Supreme Court Justice, Eid was backed by “tort reform” supporters and other business interests. Before she took a seat on the court, the Associated Press reported that Eid was "expected to follow her predecessor’s footsteps in some issues important to conservatives: strictly interpreting the law and working to rein in liability lawsuits seeking huge damages."
Raymond Gruender: Gruender is another member of the 8th Circuit U.S. Court of Appeals, and he is a former U.S. attorney for the St. Louis area. He has overcome personal tragedy: While a law student in St. Louis, his father shot him in the chest during an argument. Gruender's father then committed suicide. Gruender dissented from an 8th Circuit opinion that struck down a South Dakota law restricting abortion. Gruender argued that the law, which required abortion providers to inform patients that "abortion will terminate the life of a whole, separate, unique, living human being" did not unduly burden women seeking abortions.
Thomas Hardiman: Hardiman serves on the 3rd Circuit U.S. Court of Appeals. He has written several rulings that have sided with law enforcement. One found that a jail’s policy of strip-searching all arrestees is constitutional, and another that there’s no clearly established First Amendment right to videotape a police officer during a traffic stop. He also dissented from the court’s ruling that a public school violated the First Amendment when it barred middle-school students from wearing bracelets that said “I love boobies” to promote breast cancer awareness.
Raymond Kethledge: Kethledge, a former clerk for Supreme Court Justice Anthony Kennedy, is a member of the 6th Circuit U.S. Court of Appeals. He has served as a top committee staffer for Spencer Abraham, the former Republican senator from Michigan. Kethledge delighted the Wall Street Journal’s conservative editorial page with a 2014 opinion that slapped down the Equal Employment Opportunity Commission after the agency sued Kaplan, the for-profit education company, for employment discrimination. Kaplan, wrote Kethredge in the opinion’s first sentence, used "the same type of background check that the EEOC itself uses.” The Journal called it the “Opinion of the Year.”
Thomas Lee: Lee, an associate justice on the Utah state Supreme Court, comes from a conservative dynasty: His father, Rex Lee, served as the U.S. solicitor general under Ronald Reagan, and his brother, Mike, is the U.S. senator from Utah. (Mike Lee, who clerked for now-Justice Samuel Alito when he was an appeals court judge, has himself been floated as a potential Supreme Court nominee.) Thomas Lee previously worked in the Bush Justice department. Lee clerked for Justice Clarence Thomas, argued cases before the Supreme Court and taught at Brigham Young University’s Law School. When he was appointed to the Utah court, Lee told the Desert News, "A Supreme Court justice needs to understand that he is not a politician. He needs to understand that the judiciary is a passive branch of government. His decisions should not proactively seek to set policy.”
William H. Pryor: Of all of the judges on Trump’s list, 11th Circuit Court Judge Pryor has the most political baggage. His incendiary comments on abortion and the rights of criminal defendants led to Senate Democrats initially filibustering his nomination to the federal appeals court in 2004. In Roe v. Wade, Pryor said, the court had “swept aside the laws of the fifty states and created—out of thin air—a constitutional right to murder an unborn child.” According to a NARAL report of a speech that is no longer available, Pryor also referred to a major Supreme Court decision expanding gay rights as “new rules of political correctness for decision-making in the equal protection arena.” He went on to author a brief urging the Supreme Court to uphold a ban on what the brief repeatedly described as “homosexual sodomy.” (In a 5-4 decision, 2003’s Lawrence v. Texas, the court rejected that view.) When he was eventually confirmed to the 11th Circuit, Pryor went on to uphold a voter ID law as not posing a significant burden, dismissing a record that, according to the liberal group Alliance for Justice, “showed that nearly half of those the law prevented from voting were African American.”
David Stras: An associate justice of the Minnesota Supreme Court, Stras previously clerked for Justice Clarence Thomas and taught at the University of Minnesota Law School. His Thomas co-clerk, Carrie Severino of the conservative Judicial Crisis Network (the point group opposing Obama’s nomination of Merrick Garland to Scalia’s seat), wrote in 2012 to praise him as Stras faced election to his previously appointed position. “Justice Stras is an intelligent, thoughtful and down-to-earth person whose record demonstrates a commitment to limited, constitutional government and the notion that judges should decide cases based on the Constitution and its original meaning,” Severino wrote. According to Minnesota Public Radio’s Bob Collins, Stras’ tenure on the state court so far “has not been, at least from this non-lawyer’s perspective, particularly flashy or even ideologically driven.”
Diane Sykes: Trump has frequently thrown out the name of Sykes, a judge on the U.S. Court of Appeals for the 7th Circuit. She also did two stints as a judge on the Wisconsin state court system. (She was also Wisconsin Gov. Scott Walker’s ideal pick.) In 2013, she authored a majority opinion holding that for-profit corporations could opt out of covering contraception on their insurance plans, later backed by the Supreme Court’s 5-4 opinion in Hobby Lobby the following year. In it, she referred to some forms of contraception, as defined by the American College of Obstetricians and Gynecologists, as “abortifacient drugs.” She also voted to uphold Wisconsin’s voter ID law, which many civil rights groups opposed as discriminatory. Sykes sided with a Christian group at a public university that prohibited LGBT members, risking its funding under anti-discrimination rules, but the Supreme Court later disagreed.