Trump weighs 2 or 3 candidates for court, to meet with Pence
By CATHERINE LUCEY, LISA MASCARO and KEN THOMAS
Friday, July 6
WASHINGTON (AP) — President Donald Trump is closing in on his choice to fill a Supreme Court vacancy created by Justice Anthony Kennedy’s retirement, telling reporters that he’s focused on two or three people ahead of his Monday announcement.
“I think I have it down to four people. And I think of the four people I have it down to three or two,” Trump told reporters aboard Air Force One Thursday, as he traveled to a campaign rally in Montana.
Trump was at his private golf club in New Jersey Friday and planned to spend the weekend there, consulting with advisers as he picks his court nominee amid intense jockeying from various factions seeking to influence the choice. The president planned to have dinner Friday night with Vice President Mike Pence, who has also been meeting with candidates as part of the vetting process.
The president’s top contenders include federal appeals court judges Amy Coney Barrett, Brett Kavanaugh and Raymond Kethledge, with federal appeals court judge Thomas Hardiman still considered in the mix. As part of the roll-out process, the White House has been preparing information packages on all four, said two people familiar with the process who were not authorized to speak publicly.
Starting from a list of 25 names vetted by conservative groups, Trump has also given serious consideration to federal appeals court judges Amul Thapar and Joan Larsen, and it’s possible the White House will prepare materials for more people. The president enjoyed the suspenseful process leading up to his announcement last year that he would nominate Justice Neil Gorsuch and is hoping to keep the guessing game going until he announces his pick Monday night.
Trump’s social media director Dan Scavino tweeted Friday that the announcement would be at 9 p.m. from the East Room in the White House.
Pence met in person with Kethledge and Barrett while he was vacationing in Indiana earlier this week and met with Kavanaugh at the Naval Observatory on July 4, said a person familiar with the process who was not authorized to speak publicly. Pence has also spoken to Republican senators, including Senate Majority Leader Mitch McConnell, Sen. Ted Cruz and Sen. Rand Paul about the process.
As the president builds suspense for his second court pick in two years — a nominee who could tip the balance toward conservatives and revisit landmark rulings on abortion access, gay marriage and other issues — momentum is also growing among GOP supporters and detractors of the top contenders.
Conservatives and some libertarian-leaning Republicans, including Paul of Kentucky, have raised concerns about Kavanaugh, warning he could disappoint Republicans if his past decisions are a guide.
Paul and another Republican, Cruz of Texas, are supporting fellow Sen. Mike Lee, R-Utah, who is not said to be under serious consideration by the White House but is the only lawmaker Trump has considered for the position.
To counter that, Kavanaugh’s allies have begun pushing back, reaching out to influential Republicans to ward off potential criticisms, according to one conservative who was the recipient of such outreach and spoke on condition of anonymity Thursday to discuss the situation.
The senior administration official, though, said the administration is feeling less heat than earlier in this week over the choices, particularly Kavanaugh, and believes the jockeying in general has calmed somewhat.
With the Senate narrowly divided, 51-49, in favor of Republicans, Trump’s announcement will launch a contentious confirmation process as Republicans seek to shift the court to the right and Democrats strive to block the effort. Any GOP defections could begin to doom a nominee.
Senate Minority Leader Chuck Schumer, D-N.Y., told the president this week that nominating someone hostile to abortion access, or the 2010 health care law, would tarnish his legacy.
Schumer told Trump that such a choice would be “cataclysmic” and create more division than the country has seen in years, according to a person familiar with the conversation who said Trump called Schumer on Tuesday.
McConnell said Thursday at an event in Louisville he believes “the president will make a very high-quality appointment.” He acknowledged that his fellow Kentuckian, Judge Amul Thapar, is a finalist, but noted, “The competition at this level is pretty intense.”
Trump conducted interviews Monday and Tuesday.
Lee, R-Utah, is not viewed as a top prospect, but has consistent support among conservative and libertarian activists, including some Republicans who worry about a nominee not upholding their principles and who say the Utah senator could bring more certainty.
Paul has told colleagues he may not vote for Kavanaugh if the judge is nominated, citing Kavanaugh’s role during President George W. Bush’s administration on cases involving executive privilege and the disclosure of documents to Congress, said a person familiar with Paul’s conversations who spoke on condition of anonymity.
Some conservatives have pointed to Kethledge as a potential justice in the mold of Gorsuch. Both Kethledge and Gorsuch once served Kennedy as law clerks, as did Kavanaugh. Kethledge, a Michigan Law graduate, would add academic diversity to a court steeped in the Ivy League.
Since Trump said his short list includes at least two women, speculation has focused on Barrett, a former law clerk to Justice Antonin Scalia and a longtime Notre Dame Law School professor who serves on the 7th U.S. Circuit Court of Appeals. Conservative groups rallied around Barrett after her confirmation hearing last year featured questioning from Democrats over how her Roman Catholic faith would affect her decisions.
Trump’s choice to replace Kennedy — a swing vote on the nine-member court — has the potential to remake the court for a generation as part of precedent-shattering decisions. Recognizing the stakes, many Democrats have lined up in opposition to any Trump pick.
Associated Press writers Zeke Miller, Darlene Superville, Ken Thomas and Alan Fram in Washington and Bruce Schreiner in Louisville, Kentucky, contributed to this report.
Opinion: Politics Stains Judicial Nominations
By James Huffman
Democrats are in a full-on panic over the prospects of another Trump appointee to the U.S. Supreme Court, even before they know who the nominee will be. Republicans who held their noses while voting for Trump because they didn’t want Hillary Clinton appointing federal judges are celebrating their own good sense, even though they despair over Trump’s behavior.
Once there is a nominee there will be Judiciary Committee hearings at which senators from both parties will made long speeches, ask a few loaded questions, and vote on a strictly partisan basis. The Senate will then vote, again as partisans except for the few whose re-election might be at risk if they stick with their party.
Such is the state of federal judicial selection. Politics are everything because judges have come to be viewed as political arbiters — and not without reason. Over the just concluded term of the Supreme Court there were 13 decisions in which the five conservatives (counting Justice Anthony Kennedy) were in the majority and the four liberals were in the minority. There were also 19 unanimous rulings and 25 cases in which the court was divided with a mix of conservatives and liberals in the majority and minority. But the justices’ positions in the cases the public cares about (i.e. union dues, the travel ban, the free speech of bakers) were all too predictable even before the briefs were filed and oral arguments held.
For their part the justices explain their differences in terms of interpretive theory — the liberal wing embracing the idea of a living constitution to be adapted by judges to changing times and values, and the conservatives insisting that the rule of law requires adherence to original language and intent. But neither side is reliably consistent in its interpretive approach, with politics and personal values too often the most plausible explanations for deviations from claimed interpretive theory.
It is not difficult to understand the challenge judges face in maintaining strict objectivity in the application of their interpretive approach. They wield awesome powers over the lives of those whose disputes they resolve, often in the context of compelling human dramas. When adherence to the letter of the law allows the implementation of policies with which the judge disagrees or burdens people for whom a judge has special sympathies, it has to be tempting to bend or even ignore the law. But that is not the role of unelected judges in a democratic republic in which the separation of powers is a basic protection of individual freedom.
In an ideal world it would not matter whether a Republican or a Democrat appointed judges and justices because all judges would do their best to apply the law to the facts at hand objectively. Of course there would be disagreements about what the law requires, including in politically sensitive cases, but those disagreements would not consistently reflect the pre-appointment politics of the judges.
In the just completed term of the Supreme Court we would not have 13 cases in which the two sides look to the public more like representatives of political parties than judges intent on the rule of law.
There is no easy or obvious fix for this politicization of our federal courts. It would help if the editorial pages of our leading newspapers devoted their critiques to the legal reasoning rather than the policy implications of judicial rulings. It would also help if Congress reasserted its constitutional lawmaking authority by giving the courts more explicit direction and by rebuking the courts when they overstep their constitutional boundaries. And it would help if the judges themselves refused to let outcomes usurp the rule of law.
But as the Founders of our Constitution understood, there is no avoiding that judges, like every other government official, will be tempted to side with the interests of one faction or another. To the extent the framer’s constitutional constraints no longer work or have been weakened or abandoned, surrendering to temptation is all the more likely.
For now, sadly, it’s all politics, as it was with the nominations of Merrick Garland and Neil Gorsuch. Sen. Chuck Schumer’s call for a hold on the coming nomination until after the midterm elections is as disingenuous as was Sen. Mitch McConnell’s refusing to act on the Garland nomination so the voters could have a say in the presidential election. There is no real principle on either side.
Had Schumer been the majority leader facing a Republican president’s nomination, he would have done exactly as McConnell did. And McConnell would today be insisting that the voters should have a say in the midterm elections. As it stands the Republicans hold all the cards and, unless they are unable to hold their majority, whomever Trump nominates from his carefully curated list will be confirmed.
We may get some good judges, but their selection and confirmation is all politics, and that’s not good for the courts.
ABOUT THE WRITER
James Huffman is dean emeritus at Lewis & Clark Law School in Portland, Ore. He wrote this for InsideSources.com.
SUPREME COURT— TWO VIEWPOINTS
The Proper Role of a Supreme Court Justice
By Thomas Jipping
Justice Anthony Kennedy’s announcement that he will retire after more than 30 years on the Supreme Court ignited a predictable firestorm of controversy. Grassroots activists and senators immediately began trying to influence the president’s nomination and the nominee’s prospects for Senate approval.
The debate about President Trump’s nominee to replace Kennedy is a debate about judicial power. It’s about what we believe judges are supposed to do as part of our system of government.
America’s Founders designed our system, including the judiciary’s role, to maximize our liberty. Liberals today reject that design, preferring a judiciary so powerful that it can remake the Constitution, refashion our rights and reconfigure our country.
The far left will oppose anyone Trump nominates. In fact, less than two hours after news of Kennedy’s retirement circulated, Senate Minority Leader Charles Schumer, D-New York, took to the Senate floor to say that he will oppose anyone on the list that the president says he will use for his choice.
The left-wing quarterback will be the Alliance for Justice (AFJ), which has already issued a call-to-arms that will guide its activities and messaging in the coming weeks: “The future of health care, the environment, women’s rights, workers’ rights, LGBTQ rights, racial equality and more is literally on the line as President Trump ponders Justice Kennedy’s successor.”
Anyone who remembers their civics class should be scratching their head at this statement. Since when does the judicial branch, let alone one court or — as AFJ claims — one justice have that much power? In what system of government do judges, rather than the people, determine how the country is governed? Don’t elections matter?
Liberals are guided by the notion that the ends justify the means. They have an agenda, and they don’t care how they achieve it. If that means giving the branch of government that the American people do not elect the power to define our rights, control our institutions, and run the country, so be it.
Health care, the environment, and all the rest are obviously important. But more important than specific decisions made about those issues is who makes those decisions. Our freedom depends on the people, and those whom they elect, being the ones to make policy and define the culture. Judges play an important role in our system of government, but that role is designed to work a certain way.
America needs judges who will impartially interpret and apply the law to decide cases, but judges do not have authority to make the law that they use. James Wilson, who helped frame the Constitution and served on the original Supreme Court, said that in our system of government, “the people are masters of the government.” The kind of judges a president appoints is one of the best indicators whether the people will stay that way.
The AFJ statement will, with little alteration, be repeated endlessly in the weeks ahead. Sen. Schumer’s remarks echoed those talking points, and others on the left will do the same. They will not accept a nominee who will be impartial and approach their judicial duties without an agenda.
The forces gathering to oppose Trump’s nominee very much want a political activist to join the Supreme Court, so long as they approve of the nominee’s politics. America instead needs a justice who will impartially interpret and apply the law — and leave the politics to the American people.
ABOUT THE WRITER
Thomas Jipping is a senior legal fellow at The Heritage Foundation (heritage.org), where also serves as deputy director of the Edwin Meese III Center for Legal and Judicial Studies. He wrote this for InsideSources.com.
Opinion: Reaffirming Court’s Commitment to the Constitution
By Erin Hawley
With Justice Anthony Kennedy’s retirement, President Trump now has the opportunity to appoint a second Supreme Court justice, and given that justices are confirmed for life, this opportunity is almost certain to be his most enduring legacy.
Just Wednesday, Kennedy’s retirement sent shock waves through the legal and political community. But for close court observers, that decision was not unexpected. In the days leading up to his retirement, Justice Kennedy time and again pinned pointed concurrences explaining his view of the law — leaving instructions, as it were, for his successor.
Expected or not, the effect of Kennedy’s retirement cannot be overstated. His decision to step down will affect the way the American people are governed for the next half century or more.
And the president has committed to appointing judges and justices who believe in the Constitution and the rule of law. The twin doctrines of originalism and textualism help to constrain unelected judges to their proper constitutional role. The job of a federal judge is not to rewrite congressional statutes — imposing their own view of what is best above the representative branches. Nor is it to update the Constitution — making legislative change and innovation impossible.
As Chief Justice John Marshall famously wrote in Marbury v. Madison, the Framers gave us a written Constitution. The structural divisions of power in that document were intended to divide, and thus limit, the powers of the federal government. And all to one end: the preservation of individual liberty and dignity. Along with Montesquieu, the Founders recognized that, with separated spheres of authority, government must act in concert in order to curtail personal liberty.
The job of the judiciary should be simple. Article III of the Constitution requires judges to decide the cases and controversies that come before them. Period. Unlike the common law courts of yore, Article III courts do not possess (contrary to common practice), general authority to “make” the law. That power resides firmly in the hands of the representative branches, Congress, and upon presentment of legislation, the president.
As the late-Justice Antonin Scalia wrote, all of this matters immensely. A judge’s view of her role under the Constitution determines who governs us. Is it our representative branches or the majority of nine unelected lawyers on the Supreme Court? When the court goes beyond its role, it robs us of the freedom to influence our legislators; it robs us of the “freedom to govern ourselves.”
The president has the opportunity now to appoint a second justice who will secure this freedom for our children. A justice who believes firmly in originalism and textualism.
To take just one issue of our time, several of Kennedy’s parting concurrences focused on his favorite amendment, the First.
And for good reason. The First Amendment is under assault in America. Just this term, liberals have argued that a state (California) may force pro-life pregnancy care centers to advertise state-funded abortions. They have supported the Colorado Human Rights Commissioner who dismissed faith-based objections as nothing more than a “despicable piece of rhetoric.” And they have argued that a state may compel an individual to pay for third-party political speech with which he disagrees.
This state of affairs is shocking. The First Amendment’s twin protections of conscience and speech are the foundational principles upon which all of the others rest. As Justice Robert H. Jackson put it, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
The Supreme Court stands to protect and preserve both the structural and individual rights guaranteed to “We the People” by the Constitution. Trump has released an excellent list of potential nominees, and with his second nomination to the Supreme Court bench, the president has the opportunity to reaffirm the court’s commitment to our Constitution.
ABOUT THE WRITER
Erin Hawley is legal fellow at Independent Women’s Forum and a law professor. She is a former law clerk for Chief Justice John Roberts. She wrote this for InsideSources.com.