President Donald Trump told the Washington Times in an interview that in the event another Supreme Court seat opens, he would pick a nominee from his campaign list of potential nominees.1 Twenty potential nominees remain on his list after one of the potential nominees — now Justice Neil Gorsuch — was confirmed to the Supreme Court last month [see blog]. In explaining why he would refer to his list for the next Supreme Court vacancy, President Trump stated “[t]hat list was a big thing.”
There have been persistent rumors that Justice Anthony Kennedy will announce his retirement in the near future. On May 1, 2017, CNN reported that “friends and associates” of Justice Kennedy “believe Kennedy is seriously considering retirement.”2 Hotair notes that Senators Ted Cruz and Chuck Grassley have both speculated that a Supreme Court vacancy will occur this summer.3 Regarding the rumors, President Trump stated that “I don’t know. I have a lot of respect for Justice Kennedy, but I just don’t know.” Furthermore, he added that while he does not like talking about it, “I’ve heard the same rumors that a lot of people have heard.”
President Trump’s selection of Neil Gorsuch was the highlight of his first one hundred days in office. Many conservatives who had serious reservations about Trump voted for him in large part because of his promise to fill former Justice Antonin Scalia’s seat with a textualist justice. As one of those conservatives, I was heartened to see President Trump make good on his promise.
It is a positive sign that President Trump has pledged to again use his list of potential Supreme Court nominees for a future vacancy. The list, comprised in large part by the Heritage Foundation and the Federalist Society, contains well-vetted conservative judges (and one Senator) who would most likely make very good additions to the Supreme Court. However, many of us would not begrudge President Trump for looking outside of his list for other candidates. For example, in November, Senator Lindsay Graham suggested that Senator Ted Cruz of Texas should be added to the Supreme Court shortlist.4 I would second Senator Graham’s opinion that Senator Cruz would be very worthy of consideration. At Hotair, Allahpundit noted that another name from off the list that has been floated is Judge Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit. Judge Kavanaugh, a former clerk of Justice Kennedy, would be another excellent potential nominee for President Trump to consider [PDF version].5
For reference, the following is the list of potential Supreme Court nominees posted to now-President Trump’s campaign website on September 23, 2016 [link]. If another Supreme Court vacancy opens, I will examine the issue again in more detail.
President Trump’s List of Potential Nominees
Keith Blackwell (Supreme Court of Georgia);
Charles Canady (Supreme Court of Florida);
Stephen Colloton (United States Court of Appeals for the Eighth Circuit);
Allison Eid (Colorado Supreme Court);
Neil Gorsuch* (Confirmed as 113th Justice of the United States Supreme Court on April 7, 2017);
Raymond Gruender (United States Court of Appeals for the Eighth Circuit);
Thomas Hardiman (United States Court of Appeals for the Third Circuit);
Raymond Kethledge (United States Court of Appeals for the Sixth Circuit);
Joan Larsen (Michigan Supreme Court);
Mike Lee (United States Senator from Utah);
Thomas Lee (Utah Supreme Court);
Edward Mansfield (Iowa Supreme Court);
Federico Moreno (United States District Court for the Southern District of Florida);
William Pryor (United States Court of Appeals for the Eleventh Circuit);
Margaret A. Ryan (United States Court of Appeals for the Armed Forces);
David Stras (Minnesota Supreme Court);
Diane Sykes (United States Court of Appeals for the Seventh Circuit);
Amul Thapar (United States District Court for the Eastern District of Kentucky; nominated by President Trump to the United States Court of Appeals for the Sixth Circuit);
Timothy Tymkovich (United States Court of Appeals for the Tenth Circuit);
Don Willett (Texas Supreme Court); and
Robert Young (Supreme Court of Michigan).
The New York Times reported in February that President Trump’s team interviewed seven candidates for the vacancy that was eventually filled by now-Justice Gorsuch: Gorsuch, Hardiman, Pryor, Sykes, Kethledge, Thapar, and Willett.6 Fred Barnes at the Weekly Standard reported that the four finalists for the position were Gorsuch, Hardiman, Pryor, and Thapar.7
It is worth noting how many judges on the list do not currently sit on circuit courts. While the Supreme Court receives the majority of the attention, President Trump has many crucial vacancies to fill on federal circuit and district courts as well. Accordingly, the state and district court judges should be watched as potential nominees for vacant court seats. To this effect, President Trump made Judge Thapar his first circuit court nominee when he nominated him to a vacant position on the Sixth Circuit. For potential Supreme Court choices, the state court judges on President Trump’s list would benefit greatly from undergoing a Senate confirmation process for a circuit court vacancy. Don Willett, reportedly one of the finalists for the Scalia vacancy, is believed to be under consideration to fill a vacant seat on the Fifth Circuit. Allison Eid would appear to be natural candidates to fill Justice Gorsuch’s vacant seat on the Tenth Circuit.
For reasons that I explained during the election, choosing Supreme Court nominees is one of the most important responsibilities of the President [see blog]. President Trump fulfilled his responsibility well with his choice of Neil Gorsuch to replace the late Justice Antonin Scalia, and all signs indicate that we can expect another excellent choice if another seat on the Supreme Court becomes vacant.
- Boyer, Dave and Stephen Dinan. “Trump to pick next justice from list.” The Washington Times. April 30, 2017.
- De Vogue, Ariane. “Conservatives prepare for Justice Anthony Kennedy’s retirement.” Cnn.com. May 1, 2017.
- Allahpundit. “CNN: Friends seem to think Anthony Kennedy will retire no later than next summer.” Hotair.com. May 1, 2017.
- Griffiths, Brent. “Graham: Cruz should be on Supreme Court shortlist.” Politico.com. November 11, 2017.
- Allahpundit. “CNN: Friends seem to think Anthony Kennedy will retire no later than next summer.” Hotair.com. May 1, 2017.
- Liptak, Adam. “How Trump Chose His Supreme Court Nominee.” Nytimes.com. February 6, 2017.
- Barnes, Fred. “How Trump Landed Neil Gorsuch.” Weeklystandard.com. February 3, 2017.
