Who Will It Be?

Ken AshfordSupreme Court, Trump & AdministrationLeave a Comment

NY Times:

Signaling he has not yet settled on his pick for the Supreme Court, President Trump on Monday morning worked the phones primarily seeking input about two judges who are apparently the finalists, Brett Kavanaugh and Thomas Hardiman, people familiar with the discussions said.

Mr. Trump appeared to be going back and forth between Judge Kavanaugh, the favorite of the White House counsel, Donald F. McGahn II, and Judge Hardiman, whom the president’s sister, Maryanne Trump Barry, a former colleague of Judge Hardiman’s, has pressed him to choose.

Two other candidates for the seat of the retiring Justice Anthony M. Kennedy — Judge Amy Coney Barrett and Judge Raymond Kethledge — were not the focus of Mr. Trump’s morning discussions, according to those familiar with the discussions.

The drama-focused president is going to announce his choice for the Kennedy seat in a Monday night address to the country at 9 p.m. He said on Sunday that he hoped to have made a decision by noon on Monday.

Alright, let’s take a look at these two.


Current position: Federal appellate judge (Third Circuit Court of Appeals)

Why Trump might pick himDonald Trump’s been known to say that “the police in our country do not get respect.” That is assuredly not Thomas Hardiman’s fault.

On the Third Circuit, Hardiman has consistently sided with law enforcement against defendants and inmates. He ruled that a policy of strip-searching jail inmates didn’t violate the Fourth Amendment’s protections against unreasonable search (an opinion the Supreme Court upheld). He’s also written, in dissent, that the First Amendment does not give citizens the right to tape police — something with which every state in the union currently disagrees.

Hardiman’s pre-judicial career is full of the kinds of things liberals and Democrats don’t like: He donated to Republican candidates before being appointed to the bench (something that is neither illegal nor, to most legal experts, a big deal), and he represented plenty of political clients and political cases while he was in private practice. Most of this is insignificant: Just like it’s a defense lawyer’s job to defend murderers, it’s a civil lawyer’s job to defend companies accused of discrimination.

But it’s ironic that one of Hardiman’s most high-profile cases was a housing discrimination suit against a company accused of conspiring to keep out low-income clients — given that the president who might appoint him to the Supreme Court, early in his own career, settled a housing discrimination suit of his own against the federal government.

Perhaps most relevant to Hardiman’s chances, though, is that he was reportedly Trump’s second choice after Neil Gorsuch to replace Antonin Scalia. Despite his conservative record, grassroots right-wing activists freaked out when his name was floated, arguing he could be a stealth liberal. (The evidence for this was shockingly weak.) Perhaps, then, second time’s the charm?



Current position: Federal appellate judge (DC Circuit Court of Appeals)

Why Trump might him: Brett Kavanaugh has about as long and high-profile a record in Republican legal circles as anyone on this list. A former clerk to Anthony Kennedy, as well as appellate judges Alex Kozinski and Walter Stapleton, he represented Cuban child Elian Gonzalez pro bono during the conservative battle to keep him from returning to Cuba, and was one of the George W. Bush campaign’s lawyers in the Florida recount.

Before that, though, Kavanaugh was a protegé of Kenneth Starr, whom he served both in the solicitor general’s office under George H.W. Bush and as independent counsel during the investigation into the Clinton family’s Whitewater real estate deal. He was a principal author of the Starr Report, which detailed Bill Clinton’s affair with Monica Lewinsky and misrepresentations of that affair in sworn testimony.

“As a prosecutor, Kavanaugh set a bracing literary standard (‘On all nine of those occasions, the President fondled and kissed her bare breasts…’),” the New Yorker’s Jeffrey Toobin recalled in 2012, “but his work as a judge may be even more startling.” Toobin cites Kavanaugh’s opinion on the DC Circuit when considering a constitutional challenge to the Affordable Care Act:

[A]ccording to Kavanaugh, even if the Supreme Court upholds the law this spring, a President Santorum, say, could refuse to enforce ACA because he “deems” the law unconstitutional. That, to put the matter plainly, is not how it works. Courts, not Presidents, “deem” laws unconstitutional, or uphold them. “It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice John Marshall wrote in Marbury v. Madison, in 1803, and that observation, and that case, have served as bedrocks of American constitutional law ever since. Kavanaugh, in his decision, wasn’t interpreting the Constitution; he was pandering to the base.

It’s hardly his only stridently conservative opinion on the DC Circuit. In a profile for Ozy, Daniel Malloy notes, “Kavanaugh this year declared that the Consumer Financial Protection Bureau is unconstitutional, given the agency’s independence and unitary structure, and he has voted repeatedly to slap back aggressive regulations from Barack Obama’s Environmental Protection Agency.”

But as Trump has considered Kavanaugh to replace Kennedy, some conservatives have started to voice concerns that the judge isn’t reliably conservative enoughSome conservatives, including Sen. Rand Paul (R-KY), have pointed to Kavanaugh’s record on health care; others are concerned that Kavanaugh told senators during his DC Circuit confirmation hearing that he’d respect precedent on abortion and declined to share his views on Roe v. Wade. This could very easily be the typical DC song and dance of pretending not to believe what he clearly believes on key questions of jurisprudence, but it appears to be a concern.

The biggest problem for Kavanaugh, though, might be his association with Bush. Multiple reporters have heard from aides that Trump is suspicious of anyone in the GOP who was too closely tied to the Bushes. “You hear the rumbling because if you’ve been part of the establishment for a long time, you’re suspect. Kavanaugh carries that baggage,” one conservative organizer told the Washington Post.


All told, if it is down to those two, I am hoping for Hardiman, as he is the most likely to become a Souter or Kennedy.  Check out this graph by 538:

Second choice (for me) would be Coney Barett, but if the NY Times is to be believed, she is off the short short list.

But I am more and more convinced it will be Kavanaugh, and this is part of the reason why:

If they are LOOKING at self-preservation, then self-preservation is a criteria. And he’s the only one who seems to have addressed the “indictment of a sitting president” issue.  However, Kavanaugh wrote that Congress should pass such a statute — he specifically avoided the issue of whether the Courts can say so.

UPDATE — 3:14 pm — According to an updated version of the Times article excerpted above, Trump has made his decision.  We just don’t know which one yet.

UPDATE — 4:30 pm — Prediction markets have Hardiman surging as the days goes forward, but they are usually dumb about these things


UPDATE — 9:03 pm — It’s Brett Kavanaugh