President Donald Trump has narrowed his search for a new Supreme Court justice down to just four judges — and all of them are staunchly conservative. This is not, however, the same thing as saying that they are all exactly the same.
So who is Trump considering as a replacement for Justice Anthony Kennedy? How did he even arrive at that short list? Let's take a look.
The process by which Trump weaned out the hundreds of plausible names to focus on a list of just over two dozen can be traced back to the 2016 presidential election, according to The Washington Post. At that time, Trump's bona fides were being questioned by many conservatives, prompting the campaign's top lawyer Donald McGahn to write up and release a list of judges from which Trump would without question draw his next Supreme Court pick. At that time, the list was meant to determine who would replace Justice Antonin Scalia, who had unexpectedly died in February 2016. Now that one of the names on that list, Neil Gorsuch, has replaced Scalia, it will be used instead to find a replacement for a justice who opted to retire last month, Anthony Kennedy.
Although there are 25 names on the list, the fact is that it has actually been narrowed down to four people. Trump himself admitted as much on Sunday: "I’m very close to making a decision. Have not made it official yet. Have not made it final. It’s still — let’s say it’s the four people. But they’re excellent. Every one. You can’t go wrong," Trump told reporters, according to The Washington Post.
A look at Trump's final four:
They include the runner-up from the last time Trump had to nominate a Supreme Court judge, Thomas M. Hardiman, who serves as United States Circuit Judge of the United States Court of Appeals for the Third Circuit; Brett Kavanaugh, a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit; Raymond Kethledge, a United States Circuit Judge of the United States Court of Appeals for the Sixth Circuit; and Amy Coney Barrett, a United States Circuit Judge of the United States Court of Appeals for the Seventh Circuit.
Hardiman will bring a number of advantages with him. He was recommended to the president by Maryanne Trump Barry, his sister and a retired federal judge herself. In addition, Hardiman has a backstory that the president believes could be viewed as inspiring — to help make ends meet while he was a student at Georgetown Law school, Hardiman worked as a taxi driver.
"He’s got a story that’s compelling beyond the taxicab. I’m talking to people about his service work with his church in West Virginia and about how he has helped people seeking asylum from communist countries. He speaks Spanish. His wife comes from a Democratic family, and he knows how to engage with all kind of people, not just Republicans," former Sen. Rick Santorum, R-Pa., told the Post in an interview.
The fact that Kethledge's name appears on the list reveals two things. First, it demonstrates the fact that the Trump administration anticipated Kennedy might step down (his name was rumored to have been added after Gorsuch's confirmation in order to entice a Kennedy retirement since both Kethledge and Kavanaugh clerked under Kennedy). Second, it reveals that conservatives are particularly concerned with "religious freedom" laws over other social issues, according to The Washington Post.
Raymond Kethledge, one of President Trump’s finalists for the U.S. Supreme Court, has never explicitly stated his views on abortion or same-sex marriage. But he has spoken loudly on an issue that is just as important to conservative court-watchers.
In April, Kethledge ruled in favor of Cathedral Buffet, a church-run Ohio restaurant being sued by the government because of claims that congregants were “spiritually coerced” by their pastor to work without pay. Kethledge went further than his fellow judges on the U.S. Court of Appeals for the 6th Circuit in arguing that the restaurant’s Christian affiliation shielded it from federal labor laws.
Amy Coney Barrett brings certain obvious advantages and disadvantages for Trump. In addition to being a woman and thus potentially helping Trump stave off accusations of sexism, Barrett is also intensely religious and well-known to champion socially conservative positions that make her incredibly popular among the right, according to The Washington Post. At the same time, her involvement in the religious group People of Praise and her past statements indicating that her Catholic views influence her political (and thus arguably legal) rulings could make her too controversial to pass muster in the Senate. Indeed, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska have already stated that they would look carefully into whether a potential pick would overturn Roe v. Wade, according to Time.
This would make this particular quote by Barrett to be particularly troubling. According to a report by The New York Times, Barrett once made the following observation about the doctrine of stare decisis, which involves showing respect for judicial precedent:
The public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle.
Then there is Kavanaugh. In theory, the conservative Kavanaugh should be an unremarkable option for a president determined to placate the right. Then again, as The New York Times reported, the man has in the past argued for a broad interpretation of what can justify a presidential impeachment which could trouble Trump.
Judge Brett M. Kavanaugh, the front-runner to replace Justice Anthony M. Kennedy on the Supreme Court, once argued that President Bill Clinton could be impeached for lying to his staff and misleading the public, a broad definition of obstruction of justice that would be damaging if applied to President Trump in the Russia investigation.
Judge Kavanaugh’s arguments — expressed in the report of the independent counsel, Kenneth W. Starr, which he co-wrote nearly 20 years ago — have been cited in recent days by Republicans with reservations about him and have raised concerns among some people close to Mr. Trump. But Judge Kavanaugh has reconsidered some of his views since then, and there is no evidence that they have derailed his candidacy.
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