The Short List? Deciding the SCOTUS Nominee

The Epic Supreme Court Decision

Tea leaves, prognostications, wild guesses, and predictions sure to go wrong. Everyone can play in the “Who will be the next justice for the Supreme Court of the United States?” While President Trump mulls over what will be his second pick for SCOTUS, and before delving into the myriad of predictions, let’s go back a bit to The White House’s “official list” as it stood a few months ago.

Amy Coney Barrett of Indiana, U.S. Court of Appeals for the Seventh Circuit
Keith Blackwell of Georgia, Supreme Court of Georgia
Charles Canady of Florida, Supreme Court of Florida
Steven Colloton of Iowa, U.S. Court of Appeals for the Eighth Circuit
Allison Eid of Colorado, U.S. Court of Appeals for the Tenth Circuit
Britt Grant of Georgia, Supreme Court of Georgia
Raymond Gruender of Missouri, U.S. Court of Appeals for the Eighth Circuit
Thomas Hardiman of Pennsylvania, U.S. Court of Appeals for the Third Circuit
Brett Kavanaugh of Maryland, U.S. Court of Appeals for the District of Columbia Circuit
Raymond Kethledge of Michigan, U.S. Court of Appeals for the Sixth Circuit
Joan Larsen of Michigan, U.S. Court of Appeals for the Sixth Circuit
Mike Lee of Utah, United States Senator
Thomas Lee of Utah, Supreme Court of Utah
Edward Mansfield of Iowa, Supreme Court of Iowa
Federico Moreno of Florida, U.S. District Court for the Southern District of Florida
Kevin Newsom of Alabama, U.S. Court of Appeals for the Eleventh Circuit
William Pryor of Alabama, U.S. Court of Appeals for the Eleventh Circuit
Margaret Ryan of Virginia, U.S. Court of Appeals for the Armed Forces
David Stras of Minnesota, U.S. Court of Appeals for the Eighth Circuit
Diane Sykes of Wisconsin, U.S. Court of Appeals for the Seventh Circuit
Amul Thapar of Kentucky, U.S. Court of Appeals for the Sixth Circuit
Timothy Tymkovich of Colorado, U.S. Court of Appeals for the Tenth Circuit
Robert Young of Michigan, Supreme Court of Michigan (Ret.)
Don Willett of Texas, Supreme Court of Texas
Patrick Wyrick of Oklahoma, Supreme Court of Oklahoma

The administration having a list of potential SCOTUS nominees started back during the Trump campaign, when the death of Antonin Scalia brought the issue of Supreme Court vacancies to the fore, and then-candidate Trump looked to reassure a leary right that he would please them with a pick.

That pick went to Niel Gorsuch, after Senate Majority leader Mitch McConnell blocked then-President Obama’s nominee Merrick Garland. Most of the right has been pleased with Gorsuch thus far, and many on left still feel it is a “stolen seat.”

So now that Anthony Kennedy will be stepping aside July 31st, President Trump mulls a replacement as Democrats again bring up the way the Garland nomination was handled. The problem, as CNN’s The Point points out, is there is little beyond rhetoric the Democrats can do about it:

1. They don’t control the Senate: The majority leader of the Senate sets the schedule. And Senate Majority Leader Mitch McConnell made very clear his plan during remarks on the floor after the Kennedy news broke.
“The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy,” said McConnell. “We will vote to confirm Justice Kennedy’s successor this fall.”

2. Senate Republicans only need 50 votes: After Senate Democrats changed the rules to allow simple majorities to confirm judges below the Supreme Court level earlier this decade, McConnell pushed through a measure that made it a 50-vote threshold to confirm judges to the highest court in the country as well. (McConnell did so after Democrats held together and blocked consideration of the nomination of Neil Gorsuch in the spring of 2017.)
What that rule change means is that if all 51 Republicans support Trump’s court pick, that person will be confirmed. But a totally unified vote would depend on the likes of Sen Susan Collins (R-Maine) and Sen. Lisa Murkowski (R-Alaska), who have publicly trumped Trump in the past, staying in line behind party orthodoxy.

3. The 2018 map: There are 10 Democrats up for re-election in states that Trump won in 2016; five of those members — Sens. Joe Donnelly (Indiana), Claire McCaskill (Missouri), Jon Tester (Montana), Heidi Heitkamp (North Dakota) and Joe Manchin (West Virginia) represent states that Trump carried by double digits.
It’s no coincidence that Heitkamp, Donnelly and Manchin were the only three Democrats who voted for Gorsuch’s confirmation last year. They will be under even more pressure to support Trump’s eventual pick this time, given that the November midterms are looming.

That 50 vote issue was bound to cause this exact situation, as The Atlantic recaps for us:

A little over three years ago, Senator Mitch McConnell stood on the Senate floor and issued a warning to the Democrats who then controlled the majority.

“I say to my friends on the other side of the aisle, you’ll regret this,” McConnell, then the minority leader, told them. “And you may regret it a lot sooner than you think.”

At the urging of Majority Leader Harry Reid, Democrats had just voted along strict party lines to change the rules of the Senate, deploying what had become known in Washington as “the nuclear option.” McConnell and his Republican colleagues were furious. Under the new rules, presidential nominees for all executive-branch position—including the Cabinet—and judicial vacancies below the Supreme Court could advance with a simple majority of 51 votes. The rules for legislation were untouched, but the 60-vote threshold for overcoming a filibuster on nearly all nominations was dead.

As Donald Trump prepares to assume the presidency this afternoon flanked by Republican majorities in Congress, McConnell’s warning is looking more and more prescient. Trump may win Senate confirmation of his entire Cabinet, and while Democrats will oppose many of his nominees, it was their vote in November 2013 that helped pave the way for their success.

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6 thoughts on “The Short List? Deciding the SCOTUS Nominee

  1. I researched the schools these guys went to the other day. Figure that that information might be vaguely useful:

    Amy Coney Barrett – Rhodes College (BA), Notre Dame (JD)

    Keith Blackwell – University of Georgia (BA, JD)

    Charles Canady – Haverford College (BA), Yale University (JD)

    Steven Colloton – Princeton University (AB), Yale Law School (JD)

    Allison Eid – Stanford University (BA), University of Chicago (JD)

    Britt Grant – Wake Forest University (BA), Stanford Law School (JD)

    Raymond Gruender – Washington University in St. Louis (BA, MBA, JD)

    Thomas Hardiman – University of Notre Dame (BA), Georgetown Law (JD)

    Brett Kavanaugh – Yale University (BA, JD)

    Raymond Kethledge – University of Michigan (BA, JD)

    Joan Larsen – University of Northern Iowa (BA), Northwestern University (JD)

    Mike Lee – Brigham Young University (BA, JD)

    Thomas Lee – Brigham Young University (BA), University of Chicago (JD)

    Edward Mansfield – Harvard University (AB), Yale University (JD)

    Federico Moreno – University of Notre Dame (BA), University of Miami School of Law (JD)

    Kevin Newsom – Samford University (BA), Harvard Law School (JD)

    William Pryor – Northeast Louisiana University (BA), Tulane University Law School (JD)

    Margaret Ryan – Knox College (BA), Notre Dame Law School (JD)

    David Stras – University of Kansas, Lawrence (BA, MBA, JD)

    Diane Sykes – Northwestern University (BS), Marquette University Law School (JD)

    Amul Thapar – Boston College (BS), UC Berkeley School of Law (JD)

    Timothy Tymkovich – Colorado College (BA), University of Colorado Law School (JD)

    Robert Young – Harvard University (BA, JD)

    Don Willett – Baylor University (BBA), Duke University (MA, JD, LLM)

    Patrick Wyrick – University of Oklahoma (BS, JD)

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    For comparison:

    John Roberts – Harvard University (BA, JD)

    Anthony Kennedy – Stanford University (BA), Harvard University (LLB)

    Clarence Thomas – Conception Seminary College College of the Holy Cross (BA), Yale University (JD)

    Ruth Bader Ginsburg – Cornell University (AB), Harvard University, Columbia University (LLB)

    Stephen Breyer – Stanford University (BA), Magdalen College, Oxford (BA), Harvard University (LLB)

    Samuel Alito – Princeton University (BA), Yale University (JD)

    Sonia Sotomayor – Princeton University (BA), Yale University (JD)

    Elena Kagan – Princeton University (BA), Worcester College, Oxford (MPhil), Harvard University (JD)

    Neil Gorsuch – Columbia University (BA), Harvard University (JD), University College, Oxford (DPhil)

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    • Only three of the 25 are currently in the NE urban corridor. Only one is from the 1st, 2nd, DC, or Federal Circuits, which have had a near-lock since Reagan went West for O’Connor and Kennedy. No one from the 9th, which covers 21% of the US population and 22% of the normal Circuit Court cases. Liberal or conservative in temperament, this is a big change.

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  2. So much for Jeanine Pirro, who Burt speculated might be the nominee on another thread.

    Btw, in answer to the trivia question (I haven’t googled) I’m going to guess the answer is Ginsburg. And if she were confirmed by a Demo Senate, then you have to go a long way back, like Whizzer White or somebody.

    I’ve seen some speculation that Murkowski or Jeff Flake or somebody go throw a wrench into the works. I don’t anticipate that happening at all. What’s more interesting is to see how many Demo votes there will be for the nominee. I expect there will be at least a few.

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  3. The speculation is that it is going to be Barret, Thapar, or Ho because those cause maximum trolling possibilities for the Democrats. All are solidly to the right without any known apostasies and they provide some cover from the overall white maleness of the Trump admin.

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    • It could work out that way and out of the people on the list I don’t really have a horse in this race. But as things stand there’s really not much percentage in trying to troll the libs. There’s also not any obvious interest group that needs to get paid off.

      Gorsuch already showed us the blueprint of what works. I don’t expect Trump to try to reinvent the wheel here.

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