However improbable it may seen, Donald Trump has a problem with conservative Republicans who apparently worry less about his demagogic presidential campaign than about his suspect conservative bona fides. The presumptive Republican presidential nominee took one step toward neutralizing that problem last week [May 18] by offering a sop to conservatives: a list of 11 certifiable conservatives as potential Supreme Court nominees in a Trump administration.
Trump raised expectations weeks ago by promising that he would pick a qualified candidate if he gets the chance to fill the current unfilled vacancy left by the death of the iconic conservative justice Antonin Scalia. The venerable conservative magazine National Review tweaked Trump by criticizing his “worrisome” delay in listing possible Supreme Court nominees. Trump put out his list of “representative” contenders later the same day.
To be sure, none of the 11 is laughably unqualified to serve on the Supreme Court, belying the satirical prediction from the longtime political observer Norman Ornstein that Trump might choose Judge Judy for the bench. Instead, all 11 are sitting judges: six of them on federal courts of appeals, all appointed by President George W. Bush; and five others on state supreme courts, all appointed by Republican governors.
Conservatives were generally encouraged, though some were wary. Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, said all of the potential contenders have “a record of putting the law and the Constitution ahead of their political preferences.” Ed Whelan, a legal commentator and former Scalia law clerk, praised the list in comments to The New York Times but questioned whether Trump could be counted on “to pick folks like this” if actually in office.
Liberal advocates voiced alarm. Nan Aron, president of the Alliance for Justice, collectively labeled the people on the list as “extremists.” In a quickly assembled report on the federal judges, the Alliance said they represented “a right-wing ideology that threatens fundamental rights and that favors the powerful over everyone else, especially individuals from historically marginalized communities.”
Geographically, those on the list represent the American Heartland, with no one from either the Atlantic or Pacific Coast or Inside the Washington Beltway. Tellingly, none graduated from Harvard Law School. Eight are men, three are women, and, most significantly, all are white.
The Alliance’s report and quick research by others help confirm the federal judges’ conservative bona fides. William Pryor Jr., an Alabaman serving on the Eleventh Circuit, once called Roe v. Wade one of “the worst examples of judicial activism.” The Times notes that Raymond Gruender, a Missourian on the Eighth Circuit, authored a split decision upholding a South Dakota law requiring doctors to inform a woman that abortions “terminate the life of a . . . living human being.” Gruender’s Eighth Circuit colleague Steven Colloton, an Iowan, was part of the only federal appeals court panel out of nine to rule against the Obama administration’s plan to accommodate objections from religious nonprofits to providing contraception coverage for students and employees.
Diane Sykes, a Wisconsian on the Seventh Circuit, is cited by the Alliance for upholding her state’s voter ID law and striking down Chicago’s handgun ban positions eventually vindicated by the current Supreme Court. Thomas Hardiman, a Pennsylvanian on the Third Circuit, showed his Second Amendment bona fides by dissenting from a decision upholding a New Jersey law requiring applicants for a public-carry permit to show a “justifiable need” for the authority. Michigander Raymond Kethledge on the Sixth Circuit is marked down for upholding a law from his state prohibiting public schools from using payroll checkoffs to collect union dues from teachers.
Among the five supreme court justices, the best known is the Texan Don Willett, who has attracted more than 45,000 followers to his Twitter account with often whimsical tweets, including some mocking slights about Trump. Willett has a following among legal conservatives for openly espousing libertarian sentiments that hearken to the anti-regulatory jurisprudence of the Lochner era.
When the Texas Supreme Court struck down a state licensing scheme for eyebrow threaders, Willett wrote a concurring opinion that espoused what he called “the unalienable human right to pursue happiness without curtsying to government on bended knee.” Damon Root, senior editor of the libertarian magazine Reason, called it “perhaps the most libertarian legal opinion ever written.”
The other state justices on the list are Colorado’s Allison Eid, Michigan’s Joan Larsen, Minnesota’s David Stras, and Utah’s Thomas Lee. The Alliance pleaded no time for research on the state justices; Larsen has been on the bench only nine months. But all clerked for conservative justices: Larsen for Scalia; and Eid, Lee, and Stras for Clarence Thomas. Among the federal judges, Colloton clerked for the late chief justice William H. Rehnquist and Kethledge for the moderate conservative Anthony M. Kennedy.
The Trump list contrasts sharply with the current Supreme Court nominee, the veteran federal appeals court judge Merrick Garland. Trump’s candidates lack Garland’s long experience and, more significantly, any indicia of appeal across the ideological spectrum. “I would be surprised if there are any Democrats who would describe those individuals as ‘consensus nominees,’” White House press secretary Josh Earnest said. Trump had a different purpose in mind. He needed to find something to give to his conservative doubters: the promise of a Supreme Court seat as a political sop.