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The Supreme Court Nomination Process: Who's Our Next SCOTUS Nominee?

The process is getting ugly -- can't conservatives all just get along?

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

A few hours after Justice Anthony M. Kennedy announced his retirement from the Supreme Court, I predicted on Twitter that he would be succeeded by “a former clerk of his whose surname starts with the same letter (e.g., Kavanaugh or Kethledge).” I explained my reasoning at greater length in an Above the Law post the following day.

Now that President Donald Trump has completed his interviews of potential Supreme Court nominees, it appears that the frontrunners are, in fact, Judge Brett M. Kavanaugh (D.C. Cir.) and Judge Raymond M. Kethledge (6th Cir.). Per John Roberts (the Fox News journalist, not the Chief Justice):

But Roberts also reports that Judge Amy Coney Barrett (7th Cir.) remains in the mix:

This is all consistent with what I’ve been hearing as well, which I’d summarize as follows:

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1. Judge Kavanaugh and Judge Kethledge are the frontrunners, as I originally predicted.

2. Judge Kavanaugh’s interview with President Trump went well, and he enjoys strong support from White House Counsel Don McGahn.

I don’t mean this in any negative or conspiratorial way, as it has been (unfairly and unfortunately) spun in some quarters of the right. I simply mean that McGahn holds Judge Kavanaugh in (justified) high esteem, and he has not been swayed from this view by the (unjustified) attacks on the judge.

Speaking of unjustified attacks, the jockeying and infighting among conservatives over who will be the next nominee have gotten out of control. I agree with Ed Whelan: “I expect to be very happy with whoever the nominee is — so long as pre-nomination infighting that some are engaged in doesn’t damage the whole process.”

So everyone needs to take a deep breath and de-escalate. The process has gotten extremely nasty, with not just the candidates but even the people involved in the selection getting subjected to ad hominem attacks.

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It needs to stop. Nobody is trying to “rig” the process for anyone. Instead, the hardworking folks in the White House Counsel’s Office and the Justice Department — the same people who delivered Justice Neil M. Gorsuch and scores of great lower-court nominees to conservatives — are working hard to find the best, most qualified, most confirmable nominee for the nation’s highest court.

Just let them do their jobs. And remember that in less than a week’s time, conservatives will need to present a strong, unified front in support of their nominee, in the face of what will surely be withering — and unwarranted — attacks.

3. Judge Kethledge’s interview with President Trump went exceptionally well, probably the best of all the top-tier candidates (the first four candidates, who were brought in on Monday morning).

Does this matter? Yes — because as Mike Allen of Axios points out, “President Trump’s Supreme Court pick will come down to ‘who he feels most comfortable with in a personal setting.'”

4. Judge Barrett’s interview with President Trump went “poorly,” according to Annie Karni and Eliana Johnson of Politico. (See also Kevin Daley and Saagar Enjeti’s piece for the Daily Caller, describing her interview as “satisfactory”; the Daily Caller’s readership loves Barrett, so read “satisfactory” as, well, less than satisfactory.)

This is consistent with what I’ve heard as well. In fact, the interview slots were roughly 45 minutes, and Judge Barrett’s interview with President Trump didn’t even make it to the half-hour mark.

[UPDATE (12/3/2018): This is a very belated update, but I correct errors whenever I learn about them (because who knows what people come across via Google). At some point after the date of this post (July 5), I learned that the interview slots were shorter, closer to 30 minutes, and that other candidates’ interviews ended before the allotted time as well — and went well, notwithstanding their brevity. So nothing should really be read into the fact that Judge Barrett’s interview did not last for the full half-hour. In fact, as of this writing, Judge Barrett is very well positioned if another spot on the Supreme Court opens up under President Trump.]

5. But after the interview, President Trump — who, as we all know, can be mercurial — warmed up to the idea of Judge Barrett as his SCOTUS nominee.

Why? Because of the political benefits — it would galvanize religious conservatives and the Republican base in advance of this fall’s midterm elections, and it would put Senator Joe Donnelly, the Indiana Democrat who’s facing a tough reelection battle in November, in a tough spot. As noted by Frank Bruni, who’s no fan of hers, Amy Coney Barrett is “the most tactically fascinating of the front-runners in several ways.”

So Judge Barrett remains in the mix, running third (even though, interestingly enough, when she was brought in she wasn’t initially viewed as a serious contender).

(If you’re a member of #TeamAmy, check out this great post from one of our IP law columnists here at Above the Law, Krista Cox, who studied under then-Professor Barrett at Notre Dame Law School: Judge Amy Coney Barrett Wasn’t My Favorite Law Professor, But She Would Be An Amazing Justice.)

6. Judge Amul Thapar (6th Cir.) had a very strong interview with the president, and Judge Thapar very much remains a contender. He should not be counted out, as it appears he has been by many — and his stock seems to be rising today (within the White House, even if the PredictIt prediction market has written him off).

If House Kavanaugh, House Kethledge, and House Barrett fight to a draw, Judge Thapar could actually emerge as the nominee. Per the Washington Post, Thapar “is the sleeper pick, and Trump has shown that he likes to surprise us.”

7. Vice President Mike Pence has been meeting with some of the candidates this week, as reported by the Associated Press. The AP didn’t name them, but upon information and belief, they include Judge Barrett and Judge Kethledge (and possibly others, but I have not yet confirmed them; Pence has also met with Thapar, although not clear if it was during the Gorsuch process, this time around, or both). [UPDATE (6:11 p.m.): I can confirm that Vice President Pence met with Judge Kavanaugh (and it went well).]

What happens next? If President Trump can be persuaded to stick to his original plan and wait until Monday to announce, then we might not know the identity of the ultimate nominee until a few hours before the announcement (which is how things went with the Gorsuch process, thanks in large part to the Hardiman head fake).

Here’s how Jeff Zeleny of CNN sees this playing out:

President Donald Trump is expected to finalize his choice for the Supreme Court by Thursday or Friday, two people familiar with the search say, allowing aides in a newly minted White House war room to spend the weekend preparing for a summer confirmation fight.

In this leak-prone White House, the President’s choice will be guarded as closely as a wartime command. His decision will be included on a larger list of finalists, with at least two — possibly three — names shared with members of the administration’s Supreme Court confirmation team.

This also allows the President to change his mind before he introduces his next Supreme Court nominee from the White House on Monday evening, aides say.

On Twitter, I gave my advice to the White House (only partly in jest):

1. Pick/leak the identities of three finalists: Judge Barrett (to excite religious conservatives), Judge Thapar (to excite Asian Americans), and Judge Kavanaugh or Judge Kethledge (whoever is the actual nominee; or if the nominee is Barrett or Thapar, bring in Kavanaugh or Kethledge as a decoy).

2. Have these three SCOTUS finalists come to the White House for Sunday dinner, and then live there, Big Brother-style, until the big reveal on Monday.

Then we won’t truly know the nominee’s identity until the curtain rises. Otherwise, we will know that whoever is seen in public on Monday is not the nominee.

I am (mostly) joking. But with a reality TV star as president, I put nothing past President Trump.

UPDATE (4:55 p.m.): Again, don’t count out Judge Thapar. President Trump likes him a great deal, as does Vice President Pence. Senator Mitch McConnell, his home-state senator and a longtime fan (they met when Thapar was being considered for U.S. Attorney), strongly supports him. Thapar’s fellow Indian American, Ambassador Nikki Haley, is also pushing for him. Finally, the politics of placing the first Asian American on the Supreme Court would be great. Thapar could very well get it.

Trump has completed his Supreme Court interview process [Axios]
‘It looks all-American’: Trump wants the whole package in Supreme Court nominee [Politico]
Trump’s Supreme Court search unleashes fierce politicking [Politico]
KETHLEDGE RISING, AS SCOTUS INFIGHTING REACHES FEVER PITCH [Daily Caller]
Conservatives are seeking a Gorsuch 2.0 in Trump’s Supreme Court pick [CNN]
Aggressive lobbying push as Trump nears choice for Supreme Court pick [CNN]
Two Judges Exemplify the Choice Trump Faces in a Supreme Court Pick [New York Times]
Trump’s Supreme Court shortlist — and the biggest pros and cons for each pick [Washington Post]

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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