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How Four Potential Nominees Would Change The Supreme Court

On Monday evening, President Trump is scheduled to announce his nominee to replace the retiring Justice Anthony Kennedy on the Supreme Court. The nominee, if confirmed, will likely change the court dramatically, cementing a conservative, five-justice majority that could long endure. News reports suggest that four names — Brett Kavanaugh, Raymond Kethledge, Amy Coney Barrett and Thomas Hardiman — have risen to the top of the pile, and that “rollout packages” were being prepared for each of them. Three of them are also favored as front-runners in prediction markets.

We decided to take a look at those four candidates and see what their pasts may suggest about their potential future on the court. (We have no inside information confirming that these are the four top candidates, and there may be others in play that the media hasn’t ferreted out. But several outlets have reported the same leading candidates, as well as the final short list of four, making us think the reports have some validity.) These four represent a diverse set of possible futures for the court: Kavanaugh is an Ivy League-educated, President George W. Bush-era D.C. insider; Kethledge is a Midwesterner with a low public profile; Barrett is a conservative Catholic wild card with less than a year of judicial experience; and Hardiman, a reliable — but not necessarily knee-jerk — right-wing judge who was also considered for the Supreme Court seat that ultimately went to Neil Gorsuch. But each would likely represent a solidly conservative voice on the bench, upending the years of delicate balance where Kennedy sometimes swung between evenly matched liberal and conservative blocs.

Brett Kavanaugh, the Bush insider

Brett Kavanaugh is a judge on the District of Columbia Circuit Court of Appeals, where he’s served since 2006. He has a long, high-profile Washington resume: After clerking for Anthony Kennedy (in the same term as Gorsuch, Trump’s previous Supreme Court appointee), he worked on Kenneth Starr’s independent counsel investigation into Bill and Hillary Clinton’s ill-fated Whitewater land deal. He ultimately helped write the Starr Report, which outlined details of then-President Bill Clinton’s affair with Monica Lewinsky and his subsequent misrepresentations of that affair while under oath. From there, he served as a lawyer for George W. Bush, both during the 2000 election recount in Florida and in the White House after Bush became president.

Combine this extensive Washington experience with Kavanaugh’s sterling resume — he received both his undergraduate and law degrees from Yale — and it’s easy to see why he has been floated as a front-runner to fill the Supreme Court vacancy ever since Kennedy announced his retirement. Trump is reportedly “drawn to” candidates with Ivy League degrees, and among the three leading contenders,only Kavanaugh has that background.

Kavanaugh’s conservative bona fides are strong. According to the Judicial Common Space scores, a measure of judicial ideology developed by several political scientists and legal scholars, he would likely be considerably more conservative than departing Justice Anthony Kennedy, and would fall to the left only of Justice Clarence Thomas. It should be noted, however, that the scores for appeals court judges, including all four expected finalists, are based solely on the president and senators involved in their nomination process, not on the judges’ votes or opinions once they join the bench.1

Like many of the other judges on Trump’s judicial short list, Kavanaugh is an active member of the conservative Federalist Society. He’s a textualist in the mode of the late Justice Antonin Scalia — meaning he believes that questions about the law should be answered by looking almost exclusively at the text of the law, setting aside other factors like statements legislators made when passing the law — and Scalia occasionally cited Kavanaugh’s reasoning when writing his own opinions. During his time on the D.C. Circuit, Kavanaugh authored a number of rulings reining in Obama-era environmental regulations, and he declared in a recent dissent that the structure of the Consumer Financial Protection Bureau, the agency created in the wake of the Great Recession to prevent future financial meltdowns, was unconstitutional.

Last year, he also dissented when the D.C. Circuit ruled that an undocumented teenager was entitled to an abortion while in federal custody, writing that the ruling was “ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.”

But Kavanaugh is not an uncontroversial figure, nor is he universally praised by conservatives. Bush nominated him to the D.C. Circuit in 2003, but his appointment was held up for three years, largely because of criticism about his legal background and closeness to controversial Bush-administration policies. That closeness to Bush isn’t likely to help him get nominated or confirmed any more now than it was then. Some conservative activists have already expressed skepticism about his closeness to the Washington “establishment.”

Notably, Kavanaugh’s time working on Starr’s independent counsel investigation led him to conclude that presidents should not be bothered by criminal investigations or civil lawsuits while in office — a view that could be extremely significant given the wide range of pending legal actions against Trump and the ongoing special counsel investigation into possible collusion between the 2016 Trump campaign and Russia.

And Kavanaugh declared during his confirmation hearing to the D.C. Circuit that as an appellate judge, he would follow Roe v. Wade “faithfully and fully” because it is “binding precedent of the [Supreme] Court.” Of course, that doesn’t say much about how he might rule if he had the opportunity, as a Supreme Court justice, to change the high court’s “binding precedent” on abortion.

Raymond Kethledge, the low-profile Midwesterner

Raymond Kethledge clerked for Kennedy during the 1997 Supreme Court term, and for the past 10 years he has served on the 6th U.S. Circuit Court of Appeals, the Cincinnati-based court that has appellate jurisdiction over courts in Kentucky, Michigan, Ohio and Tennessee.

Like Kavanaugh, Kethledge’s Judicial Common Space score suggests that he would be a reliably conservative voice on the court. He has attracted attention from conservatives for writing strongly worded opinions in several high-profile cases. During the controversy over whether the IRS had singled out tea party groups for intensified scrutiny, a ruling written by Kethledge forced the agency to turn over documents it had been trying to withhold and sharply criticized the IRS for its foot-dragging. One of his 2014 rulings was also declared “opinion of the year” by The Wall Street Journal for delivering a “legal smackdown” to the Equal Employment Opportunity Commission.

Despite his strong conservative record, Kethledge has a lower public profile than the other two front-runners — which could work to his advantage. He recently co-wrote a self-help book about the benefits of working in solitude. He also writes his own published opinions, rather than delegating the drafting to his clerks, which is unusual on the Supreme Court.

Amy Coney Barrett, the Catholic conservative wild card

Amy Coney Barrett is a relative newcomer. She joined the 7th U.S. Circuit Court of Appeals — the Chicago-based federal court that covers Illinois, Indiana and Wisconsin — less than a year ago after a contentious 55-43 Senate vote. Three Democrats supported her confirmation: Joe Donnelly, Tim Kaine and Joe Manchin. No Republicans opposed it. She had not previously held judicial office.

Barrett attended Notre Dame Law School and Rhodes College in Memphis. She would be the first ever justice from Notre Dame; every current justice attended either Harvard or Yale at some point. She would be the fifth female justice. At 46 years old, she’d be the youngest justice on the court, a few years younger than Gorsuch, with likely decades of service ahead of her.

Before joining the 7th Circuit last fall, Barrett was an academic. She had taught law at Notre Dame since 20022 and briefly at the George Washington University Law School before that. Earlier in her career, she spent two years as an associate in private practice.

This is normally the part where we’d break out the data and tell you about Barrett’s quantified ideology, the potential empirical makeup of the court and her political metrics. But there’s a problem: She doesn’t have any. Because she ascended to the federal bench so recently, Barrett doesn’t appear in the prominent Judicial Common Space scores or the DIME database.

We do know that she clerked for Justice Scalia during the 1998-99 Supreme Court term and before that for the conservative Judge Laurence Silberman, who had been appointed by President Reagan to the District of Columbia Circuit Court of Appeals. She is also a member of the conservative Federalist Society, which worked with Trump to assemble his short list of potential nominees.

Beyond those bona fides, Barrett became a conservative cause célèbre after her circuit court confirmation hearing in September, when she was questioned sharply by Democratic Sen. Dianne Feinstein about whether her religious beliefs (Barrett is Catholic) would influence her rulings.

“The conclusion one draws is that the dogma lives loudly within you,” Feinstein said. “And that’s a concern when you come to big issues that large numbers of people have fought for for years.” Feinstein was referring, of course, to Roe v. Wade.

As an academic, Barrett has often expressed her thinking in law review articles. Also raised at her confirmation hearing was a 1998 article that she had co-authored as a law student, “Catholic Judges in Capital Cases,” that suggested that Catholic judges ought to recuse themselves in some cases that could conflict with their religious beliefs. Barrett has dismissed some of the article as out of date with her current views. “It’s never appropriate for a judge to impose that judge’s personal convictions … on the law,” she said at the hearing. In a 2013 law review article, Barrett wrote that “stare decisis,” the legal doctrine of respecting precedent — including, potentially, Roe — was “not a hard-and-fast rule in the court’s constitutional cases,” and she noted in the same article that scholars “do not put Roe on the superprecedent list” of cases that could never be overturned.

Thomas Hardiman, always a bridesmaid?

Thomas Hardiman, a judge on the 3rd U.S. Circuit Court of Appeals — the Philadelphia-based federal court that covers Pennsylvania, New Jersey, Delaware and the Virgin Islands — is making his second appearance on the list of Trump’s final contenders for a Supreme Court spot. He was a runner-up to fill Scalia’s vacant seat last year, although the spot eventually went to Gorsuch. It was reported then that his personal story may be part of why Trump finds him an appealing candidate: A graduate of Georgetown University Law Center, Hardiman was the first in his family to finish college, and he financed his legal education by driving a taxi. He was appointed to the 3rd Circuit by George W. Bush in 2007 and was confirmed unanimously.

In 2017, when Hardiman was being considered for Scalia’s seat, SCOTUSblog analyzed his record: He has been a supporter of the death penalty from the bench, has been unsympathetic to most free speech claims and has taken an expansive view of Second Amendment rights. The Washington Post went further, saying in a recent headline that Hardiman is seen as a “Second Amendment extremist.” Hardiman has not yet ruled directly on issues related to the right to abortion, although earlier this year he did allow the Little Sisters of the Poor, an order of Catholic nuns, to join the Trump administration in a case involving expanded exemptions from the Affordable Care Act’s contraception mandate.

But despite these conservative credentials, as FiveThirtyEight reported last year during Hardiman’s first round as a rumored nominee, the legal scholars Lee Epstein, Andrew Martin and Kevin Quinn noted that Hardiman’s nominating process suggested he was more likely to be moderate than some of the other judges on Trump’s short list. “Were he to replace Scalia, there is some possibility that he would relieve Kennedy of Kennedy’s ‘super median’ status,” they wrote at the time. “Hardiman or Kennedy could form majority coalitions with the left or right side of the Court — in much the same way that Kennedy and O’Connor did in the 1990s-2000s.” Indeed, his Judicial Common Space score comes out as quite moderate, because one of the senators whose ideology influences Hardiman’s score was the centrist Arlen Specter.

Hardiman may have an edge over the other front-runners in at least one arena: He served on the 3rd Circuit with Trump’s sister, Judge Maryanne Trump Barry, who reportedly backed him for Scalia’s seat last year. But that endorsement could be overshadowed by the fact that some conservatives were skeptical of his credentials in 2017. At the time, one conservative-leaning law professor said that Hardiman’s views on key issues weren’t sufficiently clear and compared him to Justice David Souter, the George H.W. Bush appointee who went on to become one of the most reliably liberal votes on the court.

Footnotes

  1. The score considers the senators from a nominated judge’s home state because of a custom called “senatorial courtesy,” which is an implicit agreement that senators will not support nominees who are opposed by the senators from the nominee’s own state.

  2. With a stint as a visiting professor at the University of Virginia in 2007.

Oliver Roeder is a senior writer for FiveThirtyEight.

Amelia Thomson-DeVeaux is a writer and reporter living in Chicago.

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