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America's Next Top Justice: Judge Brett Kavanaugh, Or Judge Raymond Kethledge?

The nominee will -- and should -- be one of these two very well-credentialed, highly regarded, experienced federal judges.

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Who will replace Justice Anthony M. Kennedy on the Supreme Court? On the day that Justice Kennedy announced his retirement, I made this prediction:

Judge Brett M. Kavanaugh (left) and Judge Raymond M. Kethledge (right)

Over the past few days, there has been a huge amount of conversation and speculation about who will be President Donald Trump’s second SCOTUS nominee. All of this discussion, including comments from President Trump, his advisors, and key senators, has only strengthened my confidence in my original prediction.

On Friday, President Trump said that he would announce his pick on Monday, July 9, after the July 4th holiday and a day before he leaves on a week-long European trip. And he made clear that he understands the importance of his choice: “Outside of war and peace, of course, the most important decision you make [as president] is the selection of a Supreme Court judge.”

What is Trump looking for in a nominee? Per the Washington Post:

Trump has told advisers he is looking for three overarching attributes in a replacement for Kennedy. First, one adviser said, Trump insists upon an “extraordinarily well qualified” nominee with a superlative résumé. The president is especially drawn to contenders with name-brand degrees, such as from Ivy League universities such as Harvard or Yale.

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According to Maggie Haberman of the New York Times, “As he sifts through SCOTUS choices, Trump has been telling people he wants someone with a degree from Harvard or Yale.” But with all due respect to my alma maters, I don’t view such casual comments from Trump as a firm commitment; I view this as the president simply stressing that he wants someone with impeccable credentials, including a degree from a name-brand university (because with Trump, it’s all about brand names).

Secondly, Trump has said it is essential his nominee be “not weak,” meaning someone with independent judgment and the courage to buck “the political and social fashions of the day,” as the adviser put it.

Thirdly, Trump privately says he wants a nominee who will “interpret the Constitution the way the framers meant it to be,” according to the adviser, who spoke on the condition of anonymity to relate a private discussion with the president.

(The dominant strain of originalism these days is original public meaning rather than original intent, but considering that this is a distinction lost on many lawyers, I’ll give the president a pass.)

And as he does with all job candidates, Trump will be looking also for personal chemistry, ­central-casting looks and relatable life stories.

Based on these criteria — plus youth, since President Trump has made clear that he wants a nominee “that’s going to be there for 40 years, 45 years” — who fares the best? Let’s look at the list.

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On the day of Justice Kennedy’s retirement, Fred Barnes of the Weekly Standard identified these five figures as frontrunners from the president’s not-so-short shortlist of 25 (in alphabetical order):

  • Judge Amy Coney Barrett (7th Cir.), 46, of Indiana
  • Judge Thomas Hardiman (3d Cir.), 52, of Pennsylvania
  • Judge Brett Kavanaugh (D.C. Cir.), 53, of Maryland
  • Judge Raymond Kethledge (6th Cir.), 51, of Michigan
  • Judge Amul Thapar (6th Cir.), 49, of Kentucky

Over the weekend, I did my own independent reporting, which confirmed the accuracy of this list — with one other name added, namely, Judge Joan Larsen (6th Cir.), 49, of Michigan. This makes sense, given that President Trump said on Friday that his finalists include two women.

A threshold observation: any one of these six judges would be a great nominee. They are all superbly credentialed, deeply respected in both the legal profession and their communities, and well within the ideological mainstream. All of them deserve to be confirmed if nominated.[1]

But only one of them can be nominated (despite conservative fantasies/liberal nightmares of dual Kennedy-Thomas retirements). Here’s why I think the nominee will — and should — be Judge Kavanaugh or Judge Kethledge.

Let’s start with Judge Barrett, a former law clerk to Justice Scalia and former law professor at Notre Dame, who’s getting the greatest buzz on social media and who’s the current favorite in the PredictIt prediction market. Ross Douthat thinks she’ll be the nominee, and CBS News reported this morning that she is one of the top two contenders (along with Judge Kavanaugh). As I noted on Twitter over the weekend, her supporters are by far the most enthusiastic — and the support seems to be organic and grassroots, not stirred up by surrogates.

Where does it come from? Barrett became a cause célèbre among conservatives when Senator Dianne Feinstein made her infamous “dogma lives loudly within you” comments at Barrett’s confirmation hearings — comments that were widely viewed as anti-Catholic and anti-religion. The strategy of painting Barrett as some sort of religious zealot, based on her Catholic faith and her teaching at a Catholic institution, backfired — and Barrett won confirmation, 55-43.

But conservatives’ love for Barrett is also why she won’t be the nominee, at least this time around. I agree here with Douthat, who tweeted that even though she’d be “a great pick,” she “also might bring on the culture-war apocalypse.” Note also how Senate Minority Leader Chuck Schumer (D-N.Y.), who has a New York Times op-ed today about the SCOTUS process, just singled out Judge Barrett among the nominees in a series of critical tweets — which might endear her more to conservatives, but doesn’t make her confirmation any easier.

For better or worse, Roe v. Wade and abortion are going to flashpoints in this confirmation battle, mainly because Justice Kennedy was the swing vote on these issues. Senator Susan Collins (R-Maine), who along with Senator Lisa Murkowski (R-Alaska) is a key senator to win over, said over the weekend that “hostility” toward Roe would be a dealbreaker.

And for better or worse, there’s enough in Barrett’s record to paint her, fairly or unfairly, as not a huge fan of Roe. She is conservative, she is Catholic, and past written and spoken comments of hers can be construed, fairly or unfairly, as reflecting anti-abortion views. Indeed, some of her biggest fans support her precisely because they think or hope she might vote to overrule Roe. See, e.g., Ramesh Ponnuru: “If Roe v. Wade is ever overturned — as I certainly hope it will be, as it is an unjust decision with no plausible basis in the Constitution — it would be better if it were not done by only male justices.”

With Republicans having no margin for error — they hold a 50-49 advantage in the Senate, assuming Senator McCain cannot travel to D.C., and two of the 50 are moderate, pro-choice women (Collins and Murkowski) — they probably shouldn’t go with Barrett, at least this time around. Instead, it might be better to save her for the future — when she will have more judicial experience (she would be attacked today as “inexperienced”), when the Republicans have a bigger margin in the Senate, or when Justice Ruth Bader Ginsburg leaves the Court (because, as I suggested last week, “replacing a woman — and historic crusader for women’s rights — with a man, and probably a straight white man at that, isn’t a great look”).

Also, at 46, Barrett is the youngest of the finalists. Unlike some of the other nominees, she’s nowhere near 55, widely seen as the “sell-by” date for SCOTUS nominees (especially for Republicans, who prize youth in their judicial picks).

Much of this same reasoning applies to Judge Larsen (who, for whatever reason, isn’t generating quite as much buzz as Judge Barrett). First, it would be good to save Judge Larsen in the event that a woman justice leaves the Court. Second, she could use more seasoning on the bench; she’s been on the federal bench for less than a year, after a short stint (two years) on the Michigan Supreme Court. Finally, at 49, Judge Larsen will have future opportunities to be considered. (Remember that in actuarial terms, women are projected to have longer lifespans than men.)

Is the White House thinking about the nominations in these terms? Absolutely. President Trump might not be thinking this strategically, but rest assured that White House Counsel Don McGahn and his team certainly are. They deserve much of the credit for the smooth confirmation of Justice Neil Gorsuch, as well as the success of Trump’s transformation of the lower courts. And they definitely get the “three-dimensional chess” aspects of SCOTUS appointments, thinking not just about the nomination before them, but the one after that, and the one after that.

So McGahn and company are definitely thinking about whom to save for the future. And I would add Judge Thapar to that list.

As a (highly respected) district judge for almost a decade, Judge Thapar does have more judicial experience than Judge Barrett or Judge Larsen. But being a trial judge is quite different from being an appellate judge, and Judge Thapar has been on the Sixth Circuit for just a year. And at age 49, Thapar is the youngest man on the short shortlist, meaning that he too will have another shot. (Recall that he was a finalist last time around, too; if he gets passed over this time, he will be on his way to competing with Judge Edith Jones for the title of “Susan Lucci in judicial robes.”)

Here’s another notable fact about Judge Thapar: if he were to become Justice Thapar, he would be the first Asian American and South Asian American member of the Supreme Court. That would be a nice historical first, especially for an administration that gets criticized for not having enough diversity in its judicial picks. And if Justice Thomas were to leave the Court, a prospect that is widely discussed (although in my view greatly exaggerated), it might be nice to replace the second African American on the Court with the first Asian American.

This leaves us, surprise surprise, with the three white males north of 50, all of them experienced jurists with more than a decade of service on the bench: Judge Hardiman (52), Judge Kavanaugh (53), and Judge Kethledge (51). Given their ages, this could be their last shot at SCOTUS — and another reason the White House might want to put them at the front of the line, since the other shortlisters can be saved for later.

Of the three, Judge Hardiman came the closest last time — so close, in fact, that many were certain he’d be the nominee (speculation furthered by his leaving Pittsburgh on the day of the nomination announcement, making people think he was D.C.-bound). President Trump really liked Hardiman, who (unlike the president) is very much a self-made man — the first in his family to graduate from college, who helped pay his way through school by driving a cab.

So why don’t I think Judge Hardiman is a lock this time? I’ll borrow a line I used in previously comparing him with then-Judge Gorsuch: “Both judges have stellar credentials, but Judge Gorsuch’s shine just a little more brightly.” Replace “Gorsuch” in that sentence with “Kavanaugh” or “Kethledge,” and it still holds true.

It’s a bit ridiculous that Hardiman, a graduate of such prestigious schools as Notre Dame (college) and Georgetown (law school), isn’t elite enough. But for better or worse, based on Trump’s offhand “Harvard or Yale” comment from Friday, plus his selection of Harvard Law grad Gorsuch over Hardiman last time, it seems the president does care about such things in his nominee.

Trump is a salesman, and brand names help in closing the sale. So on this front, Judge Kethledge, a University of Michigan graduate for college and law school, and Judge Kavanaugh, a Yale graduate for college and law school, have an advantage.

Here’s one more area where Kavanaugh and Kethledge enjoy a credentials edge over Hardiman: they both clerked for SCOTUS, and for Justice Kennedy specifically. Even though I have previously bemoaned the way that “Supreme Court clerkships have become the Willy Wonka golden tickets of the legal profession,” I acknowledge their unmatched power at signaling prestige.

The fact that Judge Kavanaugh and Judge Kethledge clerked for Justice Kennedy specifically will also help on the sales front. President Trump, a former reality television star, has surely already imagined the July 9 televised broadcast of his announcement of the successor to Justice Kennedy — with Justice Kennedy in attendance, to give a handshake or hug to his protégé turned successor. (My recommendation: go for the handshake, at least on TV, to avoid something like the awkward Gorsuch/Kennedy hug.)

Between Judge Kavanaugh and Judge Kethledge, who has the edge in snagging the nomination? At this point, I think it’s basically a coin flip, to be decided based in large part on how each fares when meeting with President Trump this week.

Last week, I gave a slight edge to Judge Kavanaugh, as a predictive matter. But now I think it truly is a coin flip, a 50/50 proposition.

Judge Kavanaugh is well known to legal elites, especially conservative legal elites, and to readers of Above the Law. He has dominated our pages for years as the #1 SCOTUS feeder judge, i.e., the lower-court judge who sends the highest number of clerks into coveted Supreme Court clerkships — a sign of the deep respect that his possible future colleagues have for him. And it’s bipartisan; Judge Kavanaugh is the rare feeder who has sent clerks to justices on both sides of the aisle (to every justice except Justice Ginsburg).

But over the past few days, a bunch of haters have come out against Judge Kavanaugh, from both the right and the left. The attacks lack merit, especially the ones from the right. (To see why, check out Shannen Coffin’s refutation of Roy Moore lawyer Phillip Jauregui, or Ed Whelan’s refutation of Ben Shapiro.)

The attacks, while unfounded, do reflect this reality: because of Judge Kavanaugh’s high-powered legal career at the center of American law and politics — service on the staff of Ken Starr in the Whitewater/Monica Lewinsky investigation, the George W. Bush Administration, and the D.C. Circuit (where he has ruled on such hot issues as Obamacare and abortion for undocumented immigrant minors) — there’s more ammunition that can be fired at him. And considering how ugly the confirmation fight and how close the Senate will end up being, it wouldn’t surprise me if the White House — yes, even the truculent Trump White House — decides to take the path of least resistance, especially when picking between two nominees who are otherwise comparable in age, conservatism, and credentials.

And that path would be Judge Kethledge. Here’s what prominent conservative pundit Hugh Hewitt has to say:

I concur in part and dissent in part. I concur on the assessment of Kethledge as “Gorsuch 2.0.” Like Gorsuch, Kethledge is a former Kennedy clerk from the heartland, with fantastic credentials and solid conservative views, who everyone knows is conservative, but who can’t be stopped by liberals because there’s just not enough in his record to nail him on.

In fact, Judge Kethledge may be even better than Judge Gorsuch on this score. If you look at lists of Kethledge’s most important rulings — for example, Patrick Gregory’s for Bloomberg Law, or Chuck Cooper and Ryan Snyder’s for the Yale Journal on Regulation — you’ll find much to please conservatives, but practically nothing that can be turned into a progressive talking point (not even a frozen trucker case).

Where I do dissent? On Kethledge having a “Gorsuch-like temperament.” In his brief time on the Court, Justice Gorsuch has already managed to tick off a fair number of people. Judge Kethledge, on the other hand, is impossible not to like — as I found out when I interviewed him for Above the Law about his (excellent) book, Lead Yourself First (affiliate link). I predict that, if nominated, Judge Kethledge will perform better at his hearings than then-Judge Gorsuch (who, while giving answers that were solid in substance, sometimes sounded peevish or exasperated — understandable, given the often pointless and repetitive questioning from the Senate Judiciary Committee, but still not optimal for a nominee).

(Could Judge Kethledge’s book get him in trouble, like the writings of past nominees? No — Lead Yourself First is an upbeat and inspiring advice book about leadership, so there’s really nothing controversial in it. It certainly provides less fuel for the confirmation fire than, say, Justice Gorsuch’s book on euthanasia.)

Like Gorsuch, Kethledge has much in his personal background that will appeal to the American public — and especially Trump voters. He’s a fisherman and a hunter (with guns!), who has spent almost his whole life in Michigan — the archetypal Rust Belt state, and one of the three states that gave Trump his presidential victory. (Note that Gorsuch, before returning to Colorado, spent a few years in the “swamp” of D.C.)

Judge Kethledge might not have quite as much of an “up from the bootstraps” story as Judge Hardiman — far from being the first in his family to go to college, Kethledge had a grandfather with two M.I.T. degrees and 60 patents — but he does have a solid, middle-class story to tell. He might not have worked as a cab driver like Hardiman, but he has been working for pretty much his whole adult life, since age 16, in such unglamorous jobs as busboy, waiter, and landscaper, to help pay his way through school. (Kethledge certainly comes from a less storied family than Gorsuch, whose parents were both prominent lawyers and whose mother served as the first female Administrator of the Environmental Protection Agency.)

This next fact is true of several of the other shortlisters, but still worth noting: Judge Kethledge’s clerks sing his praises. Clerking for him is a great experience — a tremendous learning experience, because he works so closely with his clerks on improving their writing, and a fun experience, involving frequent lunches with the judge and other outings, such as Michigan football games.

Judge Kethledge works with clerks through a process referred to in chambers as “sandblasting” — aggressively editing a clerk’s draft, and explaining each edit. But that process applies only to unpublished or non-precedential opinions, since Judge Kethledge writes his own published opinions. Assuming he adheres to this practice, it would be nice to once again have at least one justice who writes his own opinions. (As far as I know, Justice John Paul Stevens was the last justice to write his own first drafts — but please correct me if I’m wrong.)

So that’s why I’ve shifted to thinking Judge Kethledge could very well be the nominee. But again, at this point it’s a coin flip. Judge Kavanaugh has certain advantages over Judge Kethledge, including the double-Yale pedigree and a stronger network among conservative legal elites. It probably will come down to who clicks better with President Trump — and there’s no predicting that.

Best of luck to Judge Kavanaugh and Judge Kethledge in “The Apprentice: SCOTUS Edition.” Here’s the good news: given the greatness of both nominees, the real winners of the reality show will be the American people.

[1] Full disclosure: even though I have my own views on jurisprudential matters (which incline toward the textualist and originalist), I’m a moderate when it comes to Supreme Court candidates. I take a fairly objective approach to evaluating SCOTUS nominees, focused on qualifications rather than ideology. If I were a U.S. senator at the time of their respective nominations, I would have voted in favor of all nine members of the current Court (even if I like some justices better than others). I believe that elections have consequences, and as long as he picks a qualified candidate, the president is entitled to his nominee (including President Barack Obama’s selection of Judge Merrick Garland).

In short, I wish we could return to the days when nominations were less politicized — when Justice Ruth Bader Ginsburg could get confirmed by a vote of 96-3, and Justice Antonin Scalia by a vote of 98-0. But if you are a partisan, your mileage may vary — and if you are a partisan from the left, then no, you won’t find much to like in Trump’s SCOTUS selections.

P.S. I welcome your information and insights about the Supreme Court process and the shortlisters. Please feel free to email me, subject line “SCOTUS.” Thanks!

UPDATE (5:10 p.m.): The interview process is underway! President Trump spoke with four (unnamed) candidates this morning, and he plans to meet with two or three more before making his decision.

UPDATE (7:44 p.m.): President Trump interviewed these four SCOTUS candidates on Monday morning.

UPDATE (7/3/2018, 10:38 a.m.): The post you’re currently reading should be read alongside this new story, The Supreme Court Sweepstakes: The Case For Judge Kavanaugh.

Earlier:

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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