SCOTUS pick will certainly be ready for prime time, or will he or she?
Prime Time Pick: Supposedly the president has culled down the list to a Final Four, Brett Kavanaugh, Raymond Kethledge, Amy Coney Barrett and Thomas Hardiman, but never underestimate his ability to surprise, and often, delight with his decisions. Since nearly every report suggests that these are the four remaining contenders, I’ll play along. Let’s take a look at each one, and consider their strengths and weaknesses. A caveat: any one of these four would be 1000x better than anyone Hillary Clinton would have nominate, which goes without saying, but I just did.
Let’s start with the two Sen. Mitch McConnell said would be the easiest to confirm:
He was the runner-up to Neil Gorsuch last time. Appointed to the 3rd Circuit in 2007 by President George W. Bush, he was confirmed unanimously. He is a strong supporter of the 2nd Amendment. Served with President Trump’s sister Maryann Trump Barry.
What President Trump may like about him: First in his family to finish college, Put himself through college by driving a cab, friends with the president’s sister
What President Trump may not like: He appears a tad squishy on some really important issues (see below)
What conservatives see as potential problems: Fears that he is another David Souter based on several opinions (and probably also because he’s friends with the president’s liberal sister, but remember, Justice Scalia and Justice Ruth Bauer Ginsberg were good friends). The problem opinions include the case NAACP v. North Hudson Regional Fire & Rescue, where he ruled to strike down a fire department’s residency requirement based on a finding of “disparate impact.” (There’s that hideous phrase again! See below). In Prowel, he ruled that an “effeminate” homosexual man could be discriminated against under Title VII of the Civil Rights Act based on “gender stereotyping,” despite the fact that this does not reflect the text of Title VII, and that Title VII does not cover sexual orientation.. In Valdiviezo-Goldamez, he ruled that an illegal alien could prevail in his claim for asylum even though he was fleeing NOT government persecution, but MS-13 violence. Then there’s his supposedly less than enthusiastic critic of so-called Chevron deference, which gives a lot of power to unaccountable administrative agencies
A judge on the 6th Circuit Court of Appeals for the last 10 years, he clerked for Justice Kennedy. He writes his own opinions, rather than delegating the job to his clerks. He smacked the IRS for withholding information about whether or not they had targeted Tea Party groups and ordered that they turn over the documents they had been trying to withhold, and in what the Wall Street Journal called a “sublime” “legal smack down” described as the “Opinion of the Year,” he rebuked the EEOC for ridiculous efforts to use “disparate impact” to prove racism (one the favorite tricks of race-obsessed America-hating leftists like Barack Obama and Eric Holder). He wrote a book about the benefits of working in solitude.
What President Trump may like about him: Down to earth Midwesterner who is supposed to be quite charming
What President Trump may not like: Not an Ivy Leaguer
What conservatives see as potential problems: Some claim that his record in deciding immigration cases shows he is not committed to strict enforcement of our laws; however, he has heard over 100 of these cases, and it appears that he is an originalist who does not want to engage in judicial activism.
And the other two candidates:
Amy Coney Barrett
Most conservatives’ favorite nominee. President Trump appointed her to the 7th Circuit where she has been a judge for less than a year. Prior to being on the court, she was a law professor at Notes Dame, where she also attended law school, since 2002. She was a clerk for Justice Antonin Scalia, and is the mother of 7.
What President Trump may like about her: A favorite of many in his base; a chance to appoint a one and only on the Court, a conservative woman
What President Trump may not like: He may want to wait until she has been on the bench longer. Scuttlebutt says that her interview with the president last week didn’t go that well. She is young (46), and can be in the on deck circle if there is another vacancy.
What conservatives see as potential problems: Lack of experience and very few opinions make it difficult to understand her judicial philosophy
Currently a judge on the D.C. Circuit Court of Appeals since 2006, attended Yale both undergrad and for law school, making him the only Ivy League candidate. He clerked for Justice Anthony Kennedy, just like Neil Gorsuch. He is considered an “insider,” having worked for Ken Starr, where he helped write the Starr report, and serving as an attorney for George W. Bush.
What President Trump may like about him: Ivy League education
What President Trump may not like: Too close to the Bush family
What conservatives see as potential problems:
(1)-In a case called Seven Sky v. Holder, in his efforts to avoid deciding on the merits whether Obamacare was unconstitutional, he used the argument that the penalty for failure to purchase insurance was a tax, which is exactly the argument that the Supreme Court used to save Obamacare, what dissenters Justices Scalia, Alito, Thomas, and Kennedy accurately described as judicially rewriting the statute.
(2) In a case called Priests for Life v. HHS, he suggested that the federal government has a “compelling interest” in making sure that employees have contraception.
(3) In Garza v. Hargan, often called “the illegal immigrant abortion case” he did not join an opinion critical of Roe v. Wade, instead choosing to vote against an illegal alien’s “right” to an abortion for other reasons.
So that’s it. We’ll know the choice in about 15 minutes. Please join me live on Twitter: @teriobrien for my running commentary.