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May 18, 2016

So who would you like to see on Prez candidate Donald Trump's SCOTUS shortlist?

The question in the title of this post came to mind upon seeing this new National Review commentary by Jim Geraghty headlined "Where Is Trump’s Supreme Court Shortlist?".  Here are excerpts:

Back on March 21, Donald Trump, sensing there was some conservative anxiety about whom he would nominate to the Supreme Court, promise to compile and release a list of five to ten “great conservative judges” with “great intellects.”

“I will guarantee that those are going to be the first judges that I put up for nomination if I win,” Trump said. “And that should solve that problem.”  It’s mid-May now, Senate Republicans are holding the line against hearings or a confirmation vote on President Obama’s nominee, Merrick Garland, and there remains no sign that a list of potential Trump nominees is forthcoming.

Trump’s handling of the Supreme Court question is worrisome on three fronts. First, there is the simple failure to deliver on a public promise....

Second, he gives little indication he’s spent more than a few minutes thinking about who would make a good pick for the Court, or about the role of the judiciary in our government....

Third, there’s little sign that Trump or anyone around him grasps how important and consequential the issue of judicial appointees is, or how much good it would do him to reassure Republicans who aren’t jumping on board the bandwagon. If there were a way to be absolutely certain that Trump would appoint two, three, or four Antonin Scalia clones during his presidency, a lot of Trump-skeptic conservatives might immediately see one giant reason to vote for him.  If nothing else, they could rest easy knowing that the Second Amendment wouldn’t be effectively nullified or curtailed, that Citizens United would remain the law of the land, that voter-ID laws would be upheld, and that pro-lifers could continue to make progress in the courts....

And that’s the real tragedy of Trump’s rise: At a time when the future of the issues most vital to conservatives is more tied to the Court’s composition than ever before, the Republican party is about to nominate a man who inspires little confidence in conservatives.  There are still actions he can take to help allay conservative concerns, and there’s still time for him to take them.  But if he does, all evidence suggests it will be because they’re in his own best interests rather than the nation’s.  Though it’s less than ideal, getting the right outcomes for the wrong reasons may be the best we can hope for now.

For a number of reasons, sentencing fans should be very interested in who will become the next Supreme Court Justice, and it is seemingly becoming more and more likely that it Justice Scalia's replacement will not be Judge Garland (at least not in 2016 before Election Day).  And though I am not through this post trying to make any predictions about who is likely to be the next President, I can confidently predict that the next person nominating federal judges (both to SCOTUS and to lower courts) will have a "yuge" impact on the future of all sorts of sentencing jurisprudence.

So, dear SL&P readers, if you had The Donald's ear, what names would you whisper to him if and whenever he starts thinking seriously about judicial nominations?

UPDATE:  Seemingly only a few minutes after I put up this post, Trump did release his SCOTUS shortlist. This AP article provides these details:

Donald Trump, the presumptive Republican nominee for president, released Wednesday a list of 11 potential Supreme Court justices he plans to vet to fill the seat of late Justice Antonin Scalia if he's elected to the White House.

The list of conservative federal and state judges includes Steven Colloton of Iowa, Allison Eid of Colorado and Raymond Gruender of Missouri. Also on the list are: Thomas Hardiman of Pennsylvania, Raymond Kethledge of Michigan, Joan Larsen of Michigan, Thomas Lee of Utah, William Pryor of Alabama, David Stras of Minnesota, Diane Sykes of Wisconsin and Don Willett of Texas. Trump had previously named Pryor and Sykes as examples of kind of justices he would choose....

In a statement, Trump said the list "is representative of the kind of constitutional principles I value" and said that, as president, he would use it "as a guide to nominate our next United States Supreme Court Justices." His campaign stressed the list was compiled "first and foremost, based on constitutional principles, with input from highly respected conservatives and Republican Party leadership."...

Apart from Sykes, who is 58, the others all are younger than 55 and David Stras is just 41. The eight men and three women on the list are all white.

As a commentor below has aleady suggested, I am disappointed (but not suprised) that there does not appear to be any person with a history as a criminal defense attorney on this list. But I am excited to see Judge Pryor on the list due to his thoughtful sentencing writings and his recent experiences as a member of the US Sentencing Commission (as well as my pleasant interactions with him).

May 18, 2016 at 12:53 PM | Permalink


No one.

And for the reasons you outline in your post. "At a time when the future of the issues most vital to conservatives is more tied to the Court’s composition than ever before,"

That is the problem, right there. I hadn't given much thought to it before it actually happened but I'm becoming more and more convinced that having a 4-4 split on the court is probably the best way currently to stop our run amok judiciary.

Posted by: Daniel | May 18, 2016 1:15:48 PM

The Supreme Court takes very few cases.

If a "run amok judiciary" is a concern, a 4-4 Court will be of limited help in various respects. Appellate courts and district court judges will still have broad discretion, the thinly argued Supreme Court opinions doing little to restrain their discretion. And, when some appellate court -- like the 5CA regarding the immigration issue that started with a single judge throwing a wrench into the works -- "runs amok," the a 4-4 Supreme Court will be less likely to do anything about it. The result will be a bit more diversity given conflicting results will be more likely but not sure how far that goes here.

From what I can tell, Trump will likely pick standard conservative types (taking the names he tossed out as maybes to replace Scalia) but guess Kozinksi and Sutton would be good options in that respect. I would also suggest Garland actually as a good compromise pick as seen by Republicans putting it out there in the past. Of course, my choices would ideally be more liberal ... don't think that's too realistic though.

Posted by: Joe | May 18, 2016 1:52:29 PM

The list has been released:

I'd be very pleased to see our host's interpretation of the list.

With this walking, talking cipher a stones throw from the white house it's becoming like kremlinology to figure out what what he'd do in office.

Posted by: Boffin | May 18, 2016 2:48:48 PM

The list seems fairly standard and I take the professor will be upset about that -- e.g., his desire for more public defender types.

Posted by: Joe | May 18, 2016 2:58:29 PM

Warren Buffett (to old?)
Bill Gates
Mark Zuckerberg
In sum, put a billionaire who made his/her own money there. It will insulate against corruption, none are partisan, and all have to have brains to have done what they did. As a bonus, none of them are as much of a buffoon as Trump seems to be.

Posted by: Allan | May 18, 2016 3:08:34 PM

@Joe "If a "run amok judiciary" is a concern, a 4-4 Court will be of limited help in various respects."

I enjoy how you respond to points that people don't make.

Of course it will be of limited help. But one has to start somewhere. Baby steps, baby steps.

Posted by: Daniel | May 18, 2016 4:53:34 PM

Given the number of flip flops from this walking talking cipher, this list should probably be treated as a "suggestion" subject to change if he is elected. In other words, today is mollify the base to avoid a nasty convention. In October, this list will be in the shredder.

Posted by: tmm | May 18, 2016 5:36:17 PM

@Daniel, you said "the best way currently to stop our run amok judiciary."

My reply was that it wouldn't do much and at times would encourage outlier judges/circuits to "run amok" (e.g., one outlier to stop for an extended period of time major national policies).

I'm sorry if this is not the sort of "response" you think warranted but it seemed to me germane enough. A response is not the same thing as a refutation either; it is simply a response. OTOH, you use words differently than me sometimes.

Posted by: Joe | May 18, 2016 5:51:19 PM

Nothing like putting out an update minutes after you put out a biased piece that refutes almost everything...And that’s the real tragedy of Trump’s rise...no bias here.

Posted by: DeanO | May 19, 2016 7:46:49 AM

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