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December 26, 2016

Reports of now five names atop Prez-Elect Trump's SCOTUS short-list

Ten days ago in this post I reported on reports that federal circuit judges Diane Sykes and William Pryor were among the top contenders to be named by Donald Trump to replace Justice Scalia. Now, via How Appealing and Jan Crawford at this link, the latest buzz about the short list has now also added the names of circuit judges Thomas Hardiman and Steve Colloton, and Michigan Supreme Court Justice Joan Larsen.  

I know a little bit about the sentencing "history" of many of these folks, but I am disinclined to talk up (or criticize) this history unless and until we go from short-list speculations to an actual nominee.  But if others want to praise or pillory any of these folks.....

A few prior related Trumpian SCOTUS posts:

December 26, 2016 at 04:28 PM | Permalink


It is time to drain the swamp of the Supreme Court of lawyers. No lawyers should be appointed, whatsoever.

Posted by: David Behar | Dec 26, 2016 8:10:08 PM

No law school graduates either. I suggest poets.

Posted by: Joe | Dec 27, 2016 2:01:55 PM

I think Joan Larsen would probably be the most sound choice on strategic grounds unless one thinks the first choice will not get thru at all. Colloton appears to be somewhat of a dark horse but all seem to be conservatives. My preference is for a libertarian but the next few years will be a matter of getting what you can. Someone other than a federal appeals judge is a small victory. Anyway, she's properly accepting of St. Scalia for his fans.

I'll state on the record that I think the Garland nomination was de facto robbed and hope some Democrats underline the point. I realize the author of this blog thinks it was a bit of a lousy choice. I disagreed but find that mostly besides the point on this issue. Realize some would find this comment in effect whining or something. But, as with saying lawyers shouldn't be appointed, guess this blog offers a chance for those to make comments some will find lacking some merit.

Posted by: Joe | Dec 27, 2016 2:10:32 PM

Joe. The distance from extreme left to extreme right among lawyers is small. The distance between lawyers and the public is long. The court should also be moved out of town, to avoid the local culture.

The different seems insane at first, until the data come in.

The earth is round. It travels around the sun. It has plates upon which continents float. The dinosaurs died of the cold after the crash of a 6 mile wide asteroid. The idea of dinosaurs itself. All were ideas without merit.

Posted by: David Behar | Dec 27, 2016 6:06:49 PM

Judges interpret the law. We might not like the law or what is involved in interpreting it in the real world (as compared to the role playing games of some, some of them judges), but there are a group of people who are particularly educated and experienced at it.

They are lawyers. Now, you can toss in some who spend most of their times as professors or something. Some justices, e.g., came out of legal academia. All the same, useful to have some who have experience actually coming from the trenches, including more defense lawyers.

The dislike of lawyers is old news even when Shakespeare wrote his famous line about them. Ideas come in all sizes and the fact people find some wrong alone doesn't mean they are wrong. Some popular ones are wrong. Some not popular ones are.

Posted by: Joe | Dec 27, 2016 6:59:01 PM

Joe, the Constitution provides a process for the seating of a Justice: nomination by the Prez and confirmation by the Senate. The Senate so disliked who was nominated that they refused even to have hearing, as it their prerogative subject to a political check during the next election cycle. How is this a robbery? Politicians can, will and should play politics, subject to political checks.

Especially given data showing a significant downturn in black voters in 2016, I continue to believe very strongly that Obama completely screwed up the SCOTUS politics by nominating an entirely forgettable (and quickly forgotten) old white guy. If Obama had instead nominated a "first" --- and you know I thought Judge Ketanji Brown Jackson would be ideal --- then everyone would remember who was getting aced out of the job AND civil rights groups and women's groups and all sort of other groups could have put a compelling story behind the unfairness of depriving the nominee even a hearing. (Also, as I also argued the day of Scalia's passing, Obama should have named someone in a matter of hours before the GOP Senators could collect ranks and poll the idea of resisting hearing.) And HRC could and would have praised/championed the nominee as a sensible choice and asserted that she would make the same pick if elected.

I could go on and on, but I continue to believe very strongly that the only way forward for Ds politically is to take a MUCH younger turn. The SCOTUS pick could have been a start, but instead it played the old losing hand for the Ds yet again.

Posted by: Doug B | Dec 27, 2016 7:45:21 PM

Trump's first nominee will come from his list of 21 and that person will get Borked. He will then go outside his list of 21 and that person will get confirmed in a landslide.

Posted by: The Death Penalty Sucks. | Dec 27, 2016 9:12:03 PM

The Constitution -- people including law professors have spelled this out in detail -- over our history has been applied here is a particular way. The President nominates and the Senate confirms. If they do not want to confirm, there is an up and down vote.

This is particularly the case with Supreme Court justices, where you don't have panels of three or single judges that can be replaced. The nomination is not held in abeyance until after the election -- the people voted for Obama in 2012. The people ALREADY spoken. The people practiced their "prerogative" there, which wasn't respected.

Reference is made to how they "so disliked who" was nominated. That's b.s. Republicans repeatedly praised Garland. They didn't rest their opposition on "who" ... Republicans didn't want ANYONE Obama nominated (we are adults, so need not form moronic possibilities like him nominating Paul Clement) even to get a hearing. They hoped a Republican would have the chance and didn't even have the guts to vote him down after a hearing. Yes, this is a form of 'robbery,' even if it is allowed (some made constitutional arguments otherwise).

Trump won for reasons that make your political arguments unsound to me. The votes Hillary Clinton needed in the Rust Belt was not going to come from voting for a black woman district judge. Republicans have done various things, including regarding voting rights, that harmed blacks. They still control Congress, a majority of state legislatures and Congress. Garland would have given women, civil right groups etc. a key fifth vote (and a safety in other cases) even if he is some "old" (putting aside RBG was about as old) white guy. I already spelled in detail my opinion on the choice. I think you are wrong or at best are overdoing your argument.

Obama did not "completely screw up" -- another way might have worked better. I don't know. But, as I have noted, another nomination very well might have helped the Republicans too (e.g., giving them a "neutral" reason to oppose the person) without really exciting much more than those already likely to be excited (women, e.g., needed more reason to oppose Trump? Republican women who voted for Trump wouldn't suddenly not to because some black woman was nominated). And, there were valid reasons to think Garland was a good choice.

Posted by: Joe | Dec 28, 2016 1:09:32 PM

"I could go on and on, but I continue to believe very strongly that the only way forward for Ds politically is to take a MUCH younger turn. The SCOTUS pick could have been a start, but instead it played the old losing hand for the Ds yet again."

The Democrats need to build their state party strength. They have shown some ability to win state-wide office even in red states. They won the popular vote for the presidency by a few million votes. They need to find a good candidate and aim to win places like North Carolina and Florida (which they lost by a hair even with Hillary Clinton running) & maybe get enough votes to win one of those Rust Belt states they lost by a hair.

Your fantasy SCOTUS pick here is of little relevancy here really. Like focusing on sentencing matters in SCOTUS picks or POTUS politics, it's your personal concern, I realize. In the last couple decades, the Democrats won the presidency repeatedly. They controlled the Senate multiple times etc. They can "yet again" with some work. Younger will help both parties, I'm sure.

Posted by: Joe | Dec 28, 2016 1:18:53 PM

I do not know your age or affiliations, Joe, but I know what I feel among the very young and fairly diverse student populations I encounter at Ohio State. This population was always pretty energized by Obama, even those who disagreed with his core policy positions, because he seemed more like the new guy who represented the potential of the future rather than the battles of the recent past. This population has never gotten excited by HRC, in part because they had no sense of what they were voting "for" even as they wanted to vote against Trump. My point on the SCOTUS pick front stems from my strong believe that a "first" kind of nominee would have energized a lot of younger aand diverse voters.

What I am saying is another variation on change/newness that has been the key to national elections really since the 1970s. Jimmy Carter, Ronald Reagan and Bill Clinton were a kind of "new coke" their years. In 1984, 2004 and 2016, the Ds tried to go with "experience" over excitement and lost; the same mistake contributed to GOP loses in 1996, 2008 and 2012. (The great 2000 experience went to the wire in part because both candidates were newer versions of insider Dads.)

For me, the Garland pick was just a SCOTUS variation on that political loser theme: Beltway insiders thinking picking/hoping that a "qualified" person will carry the day when political excitement/mobilization is what really matters.

You are right that HRC's loss in 2016 was a very close one, which is why I think relatively small issues like an exciting SCOTUS nominee (and marijuana reform) could have turned out the few thousand more votes needed to make the difference. Of course, hindsight is 20-20 and I hope you know I reject your difference of opinion. But even if we look past these politics, the way the Obama team made and presented its selection was anything but impressive. Specifically: (1) why did it take a month to make the pick?; (2) why not pick a younger person?; (3) why not pick someone from a politically significant/swing state (like Florida, where Judge Ketanji Brown Jackson was from)? (4) why pick a former federal prosecutor when the Prez says he is all for criminal justice reforms, and so on.....

Posted by: Doug B. | Dec 28, 2016 3:22:08 PM


Your insider-outsider election dynamic is facile. If the country really wanted an outsider they could have elected Stien, or Nader, or hell even written in my name. The country doesn't want a revolution, it just wants to look like it had one. The idea that Trump is an outsider is laughable. He's such an outsider that Bill and Hillary showed at his most recent wedding. He's such an outsider than he too picked a Goldman Sachs person to run the economy. The reason your analysis is facile is because they are all insiders, all part of the cultural and financial elite. One has to go back to the 1970s and Carter and Ford to find anyone that could plausibly be described as an outsider running for president.

Moreover, look at who are on the early list for Dems nomination in 2020. Cumo, Warren, Biden...all insiders. I can't see any genuine outsider being nominated by the party in 2020. They just reelected Pelosi as Speaker of the House! Maybe something will happen between now and then but one major problem with the Dems losing over 1000 state seats in the last decade is that they don't have a particularly deep bench to turn to. They have litmus tested so many people out of the party with their social purity tests they don't have anywhere to look but insiders.

Posted by: Daniel | Dec 28, 2016 5:27:45 PM

The ONLY consideration that should ever be advanced for a Supreme Court Justice is, in fact, his/her ("hir" for gender-neutral advocates) only qualification should be a strict interpretation to the principles of the US Constitution. It is a shame that justices are now selected based upon their political leanings, and the Constitution be damned.

Posted by: Eric Knight | Dec 29, 2016 12:13:17 PM

I'm not going to add to my replies to Prof. B. -- at some point, one needs to move on to the next post.

A reply noted Trump is not really an "outsider." I myself noted this elsewhere. Still, he is an "outsider" in respect to being a newbie to a political position. After all, his basic lack of skills and experience in that respect has been noted. He is even more of an "outsider" there then say Eisenhower, who had a top military position.

The other reply appeals to "a strict interpretation to the principles of the US Constitution." Whatever that means. Since the Founding, other concerns were taken into account. The fictional "now" notwithstanding, this including political concerns.

Posted by: Joe | Dec 29, 2016 2:58:09 PM

Doug, there is nothing that Obama could have done to get any nominee a hearing. There was no ground swell in the country that Garland wasn't qualified nor was there any serious argument from the country that Garland wasn't qualified. Instead, the issue was who got to pick the Supreme Court nominee, and the Clinton folks and the DSCC dropped the ball on that issue (along with a lot of other issues which mattered more to votets) when they saw the shiny object of how outrageous Trump was and decided that they could win the election by just focusing on the fact that Trump was (and is) unfit to be president. At the end of the day, however, enough people thought that Clinton was unfit for different reasons, and Trump won the votes of those who didn't want either to be President.

Some statistical comparison -- In 2007-08 (the last two years of the Bush presidency), the Democratically-controlled Senate confirmed 67 judicial nominees. The last confirmation vote occurred in September 2008 and was for a person who was only nominated in July 2008. This process of confirming nominees occurred despite it looking like 2008 would be a Democratic win for much of the year.

The current Congress has only confirmed 22 nominees. The last confirmation vote occurred in July and nobody nominated after September 2015 got confirmed.

Posted by: tmm | Dec 29, 2016 5:37:40 PM

"they could win the election by just focusing on the fact that Trump was"

smh ... I realize they could have did MORE but they did not "just" focus on that. HRC had other messages in her campaign.

Posted by: Joe | Dec 30, 2016 11:23:10 AM

Joe, I realize that there were other messages in the campaign, but a good chunk of the emphasis of the last month was on Trump as unfit. Any attempt at positive messaging was buried under the focus on Trump's multiple shenanigans that would have been disqualifying for a normal candidate. (The focus on Trump's shenanigans was such a large part of the campaign that even political activists in my state were unaware that Clinton had actual -- and more detailed proposals -- on the issues that mattered to the working class and rural voters who elected Trump.)

Posted by: tmm | Dec 30, 2016 12:52:01 PM

DANIEL: I agree that Trump is in many ways an insider (within both parties), but he was effective at marketing himself as an outsider --- just as did insiders like BHO and GWB and WJC and RWR and Carter. As you note, the party system AND the media will prevent any true outsider from even getting on the ballot, let alone have chance to garner millions of votes. (For anyone eager to give the media a pass in 2016, ask some hard questions about why Johnson and Stein never got to participate in even one major debate and wonder how many disaffected voters might have gone their way if they got stage time.)

My point is not that Trump is actually an outsider -- rather it is that the major party candidate who has done the best at campaigning/marketing as an "outsider" is generally the winner. (And this links with age and professional background in various ways that Trump used well to bash Clinton, frequently saying she had 30 years to fix problems in DC and now it was time for new blood.)

TMM: Your analysis is astute, and I think you are probably right that any Obama nominee was DOA. However, I still feel strongly that if Obama had (a) picked someone "interesting and diverse" within a week of Scalia's passing AND (b) made regular visits to Capitol Hill to make the case for hearings, the politics could and would have been radically different for both the pick and for the 2016 campaign. But Obama and his team clearly did not want to use their political capital this way, and I actually think this was based on a belief that Clinton was sure to win and thus it would be just fine if she got the chance to fill the Scalia seat.

Had Clinton won, which surely could have happened had she been more tuned into rust belt realities, the decision not to use political capital to replace Scalia would not look bad at all. But now with Trump on his way in, those eager for a progressive SCOTUS cannot be too happy.

Posted by: Doug B. | Jan 1, 2017 1:01:58 PM

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