https://thefederalist.com/2019/09/23/its-time-for-trump-to-update-his-supreme-court-short-list/

It’s Time For Trump To Update His Supreme Court Short List

It would be both smart politics and good governance to update the list of SCOTUS contenders. When a vacancy emerges, whether before or after the e******n, who will be considered?

Ilya ShapiroBy Ilya Shapiro
SEPTEMBER 23, 2019

One of the key innovations of Donald Trump’s 2016 campaign was his public list of potential Supreme Court nominees. After Justice Antonin Scalia’s passing thrust the court into the forefront of the p**********l e******n, candidate Trump produced a list of judges that held the Republican coalition together and ultimately attracted swing v**ers in key states.

Three years later, after appointing two justices, the president heads into a ree******n campaign where the Supreme Court is no less of an issue. Eighty-six-year-old Justice Ruth Bader Ginsburg’s recent cancer treatment is just the latest health concern this l*****t icon has faced. She’s vowed to outlast the current president, but if Trump is reelected, the odds seem to be against her. And don’t forget that Justice Stephen Breyer is 81 years old.

So it would be both smart politics and good governance to update the list of SCOTUS contenders. When a vacancy emerges, whether before or after the e******n, who will be considered?

Let’s start with the old list of 24 judges: the original 11 from May 2016, another 10 added that September, and another five added in 2017, minus Neil Gorsuch and Brett Kavanaugh. From that group, subtract the six who are older than 60; when longevity is the coin of the realm, you’re not gonna see a repeat of Justice Ginsburg, the only sexagenarian to join the high court in nearly 50 years (not counting the unsuccessful nominations of Robert Bork, Harriet Miers, and Merrick Garland).

Also remove the two young’uns, Eleventh Circuit Judge Britt Grant (41) and Oklahoma district judge Patrick Wyrick (38). I think the world of these two, and they’re perfectly suited to be federal judges, but it’s just too early to elevate them.

That leaves 16, but before we start evaluating them, let’s pause and take into account the last three years. A lot has changed, including President Trump’s record number of appointments to the circuit courts of appeal.

Among those who don’t already appear on the list, I would add the following superstars: Third Circuit Judge Stephanos Bibas, Fifth Circuit Judge James Ho, Fifth Circuit Judge Andrew Oldham, D.C. Circuit Judge Neomi Rao, and my dark-horse, Walmart general counsel Rachel Brand (previously associate attorney general, the number-three Justice Department official, and destined for future high office, judicial or otherwise). Of those, the erudite Oldham joins Grant and Wyrick in the “hold” pile because he only turned 40 last year.

That leaves 20 people hailing from all over the country and representing diverse educational backgrounds, with only a handful having graduated from Harvard or Yale law schools. Without any p**********l puffery, it’s a terrific list.

If the seat to be filled is Ginsburg’s, President Trump will be hard-pressed not to pick a woman, particularly if the vacancy arises before the e******n—or even, frankly, before the 2022 midterms in a second Trump term. The favorite here is Seventh Circuit Judge Amy Coney Barrett, who already made the short list for what became Kavanaugh’s seat. A former Scalia clerk and Notre Dame law professor, Barrett was viciously attacked for her Catholic beliefs at her confirmation hearing, so expect more of that if she’s the pick.

The second major contender would be Rao, a former clerk to Justice Clarence Thomas and a George Mason law professor who was the “regulatory czarina” (head of the White House Office of Information and Regulatory Affairs) before joining the bench this summer. Rao, whom I’ve known for many years, is an expert in administrative law—the law of executive agencies and other regulatory bodies—an area that will be ripe for Supreme Court review in coming years.

The other possibilities, who have been mentioned before with varying degrees of seriousness, are, in my estimation of likelihood of being picked: Sixth Circuit Judge Joan Larsen, a former Scalia clerk who has mostly stayed under the radar; Judge Margaret Ryan of the Court of Appeals for the Armed Forces, who was a Thomas clerk and would be an intriguing pick because of her little-known D.C.-based court; and Tenth Circuit Judge Allison Eid, a Thomas clerk who is less likely to be tapped because she shares a home state, Colorado, with Gorsuch.

If it’s not the Ginsburg vacancy, then the field is wide open. In addition to the women, there’s Third Circuit Judge Thomas Hardiman, who once drove a taxi and has become known for his Second Amendment opinions, was the runner-up the two last times, so perhaps the third time will be the charm.

Sixth Circuit Judge Raymond Kethledge is also a strong contender, although with a lower profile in Washington than many others. Eighth Circuit Judge Steve Colloton and (especially) Eleventh Circuit Judge William Pryor were considered before, but are now in their late 50s and have a more socially conservative profile so may be harder to confirm.

The Lee brothers are an intriguing duo. Although only 48, Mike Lee is the senior senator from Utah and one of the nerdiest policymakers on Capitol Hill (in a good way). Older brother Tom Lee is a justice on Utah’s high court and a pioneer of the “corpus linguistics” approach to statutory interpretation. Both would be solid originalists.

Then there are two judges who have been on “extended” short lists: the Fifth Circuit’s Don Willett and the Sixth Circuit’s Amul Thapar. Willett became “Twitter laureate” when he was on the Texas Supreme Court and has made a name for himself defending economic liberty and constitutional structure. (Full disclosure: I once exchanged Constitution bowties with him.) Thapar, a favorite of home-state Kentucky Sen. Mitch McConnell, was Trump’s very first circuit nominee and someone about whom I’ve written favorably. Both are personable, strong writers, and politically connected.

Finally, we have a pair of 45 year-old former Thomas clerks who have come on strong as scholarly and savvy jurists. Ho, one of my proposed list additions, succeeded Ted Cruz as solicitor general of Texas. He’s gotten national attention for opinions on campaign finance and the (non-)application of current employment-discrimination law to sexual orientation and g****r identity. Having immigrated from Taiwan as a child, Ho would be the first Asian-American justice—as would Rao or Thapar.

Judge David Stras of the Eighth Circuit was the first Jew on the Minnesota Supreme Court. An affable former law professor who’s written on a variety of legal subjects, Stras recently ruled that the First Amendment protects videographers from having to film a same-sex wedding, hewing closely to the line suggested by the Cato Institute in a brief we filed alongside professor Eugene Volokh.

In sum, it’s hard to narrow down the favorites. A lot will depend on interviews with the White House counsel’s office and the president. But there’s an embarrassment of riches here. Regardless of who the eventual choice is, President Trump would be wise to update his judicial list and re-release it on the campaign trail.

Ilya Shapiro is a senior contributor to The Federalist. He is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. Follow him on Twitter, @ishapiro.

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Fantastic line ups of Justices. I think Circuit Judge Amy Coney Barrett, is the best to replace Justice Ginsberg. She is brilliant, conservative, clerked under Justice Scalia, and also a former Notre Dame professor. She was with Justice Kavanaugh's line ups.

I think if Justice Breyer retires, president Trump will have another chance to nominate conservative justice. I believe president Trump will win in 2020.

No wonder that the radical DEMS are doing everything to destroy/remove president Trump. Perhaps if the radical DEMS continue to be the majority in Congress by 2020, they'll increase the SCOTUS to 11. Hoping new Dem president comes in and could appoint more liberal justices.

I doubt the DEMS in Congress will still hold the majority in 2020. The people are really pissed off with what DEMS have been doing. They have done nothing for the jobs they were elected, but spent lots of taxpayers' money and time, impeaching president Trump since he was sworn into office.

And now another h**x made to impeach the president about Ukraine. The facts will all come out that the plots were all fabricated h**x similar to Russia. The president did not do wrong communicating with Ukraine president.

America, the only way to solve the abuses of the radical DEMS in Congress is to lay them off by the 2020 e******n. Please v**e all RED for the good of our country.

As a former Liberal Democrat and now Conservative Independent I think you are correct in your assessment of Congress, "They have done nothing for the jobs they were elected, but spent lots of taxpayers' money and time, impeaching President Trump since he was sworn into office." Keep in mind that currently, congress has only opened an inquiry into whether Articles of impeachment should be brought forward before the whole house. When Nixon was embroiled in Watergate it seems the entire government was less concerned with Vietnam or the economy. Who came to power after Nixon/Ford? Four years of the worse government we could "never" have asked for. If Trump is brought down by the double-dealing, underhanded, patronizing left-wing of the Democrat Party then we will be saddled with a Democrat President worse than Carter. Dodging Hillary was only the start of worse things to possibly come if we do not remain vigilant.

I don't necessarily agree with your view that, "I doubt the DEMS in Congress will still hold the majority in 2020. The people are really pissed off with what DEMS have been doing." Never underestimate the stupidity of people in large groups, especially low-information v**ers. This is why the Democrats are always continually trying to enfranchise more groups; convicted felons, undocumented and i*****l a***ns, and 16 year-olds.