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November 9, 2016

Eager for thoughts on who President-Elect Donald Trump should or will appoint as to SCOTUS and as Attorney General

I have never been a big fan of conventional wisdom, and the 2016 election results reminds me why.  And while I am certain the coming days and weeks will have lots and lots of pundits looking back, I am already eager to look forward by trying to figure out whom President-Elect Donald Trump will be eager to put into the positions that can and will likely have the greatest impact on sentencing law and policy in the coming years.  As the title of this post highlights, who President-Elect Trump will select to serve on the Supreme Court and to serve as Attorney General seem to me to be the most important early decisions he will make that could shape the future of sentencing jurisprudence and doctrine.  

Notably, at least three persons named by Trump as possible SCOTUS nominees have notable sentencing reform interests or history:  Senator Mike Lee, Judge William Pryor, and Judge Amul Thapar.  I am not versed on the sentencing work of others' on Trump's SCOTUS nominee lists, but I am looking forward to learning more about whomever he decides to nominate.  Given his "law and order" campaign themes and the role played by three "tough on crime" former US Attorneys as close advisers, I am expecting Trump will seek to be drawn to an Attorney General who will echo these kinds of sentiments.

Long story short, as a CNN commentator is saying as I write this, the election of Donald Trump creates a "new world order," and I am already starting to think dynamically about who will be constructing this new world and and how it will approach "law and order." 

November 9, 2016 at 03:21 AM | Permalink


The people have spoken, and as the astounding result of this election reminds us once again, "“No one ever went broke underestimating the intelligence of the American public.”

Posted by: anon12 | Nov 9, 2016 7:29:39 AM

anon12, what you write is certainly true, but I prefer to say that "winter is coming."

Posted by: Dave from Texas | Nov 9, 2016 7:33:15 AM

Dave from Texas, better yet, "winter has arrived."

Posted by: Emily | Nov 9, 2016 7:33:51 AM

Congratulations to the The American public for electing the groper in chief.

Posted by: anon2 | Nov 9, 2016 7:37:59 AM

President Trump first Supreme Court nominee: Chris Christie; second, Rudy Giuliani; third, Sean Hannity; and fourth, Rush Limbaugh.

Posted by: anon13 | Nov 9, 2016 7:41:11 AM

I am certainly no Trump fan---but it's f'ing awesome to watch all you guys gnash your teeth over his win.

Ha ha ha ha ha ha ha ha ha ha.

Posted by: federalist | Nov 9, 2016 8:16:28 AM

AG: Trey Gowdy

SCOTUS: Lyin Ted

Posted by: federalist | Nov 9, 2016 8:17:09 AM

"Former KKK Grand Wizard David Duke celebrated Republican presidential nominee Donald Trump’s election night strength in a tweet early Wednesday."

David Duke for the Court?

Posted by: anon15 | Nov 9, 2016 8:26:40 AM

I agree with Federalist: Lyin Ted to the Court. Not much will change:

1. Row v. Wade overruled. Abortion to become a state matter--states may incarcerate women who have abortions

2. Obergefell overruled. Gay marriage to become a state matter--all gay marriages to date nullified

3. Cases on Obamacare reconsidered and overruled: Obamacare unconstitutional in several repects.
All Obamacare policies void.

4. All EPA cases reconsidered and overruled. EPA without power to regulate air and water quality by interfering with coal and oil production

Anything else come to mind?

Posted by: anon20 | Nov 9, 2016 8:50:40 AM

should be "Roe" not "Row" sorry.

Posted by: anon20 | Nov 9, 2016 8:52:16 AM

Senator Grassley justified his refusal to proceed with Judge Garland's confirmation proceeding on permitting "the people" to have a voice in Scalia's replacement. As of this Wednesday morning, November 9, 2016, "the people"--from whom the popular vote comes--have voted against Trump replacing Scalia. Grassley did not justify the unprecedented obstruction of President Barak Obama's power to nominate Justices to the Supreme Court on getting the voice of the governmental entity known as "the electoral college."

If this is a time for a pointedly divided country to "come together," Grassley should proceed with Garland's confirmation.

Posted by: anoner | Nov 9, 2016 10:23:26 AM

anoner's comment is a good one, but our system rests on the electoral vote mattering. Republicans are loathe to disagree. See, 2000. But, with all the rest, Garland would be a bone. OTOH, why would they be in the mood to throw even scraps?

If Trump wants to think outside the box, he should re-nominate Garland and use it to get some Democrats on board for something he likes. Or, make it known that he would. You know, it's that sort of out of the box thinking, not just a straight Republican sentiment that he's supposed to be great at. The legitimacy factor that might bring of him being a credible President alone pragmatically is well interesting is one way to say it.

It's not like he really CARES ideologically about pushing SCOTUS to the Right as much as someone else might.

Posted by: Joe | Nov 9, 2016 11:03:42 AM

Yes, Joe, I understand that "our system rests on the electoral vote mattering," but Grassley threw that system out the window to justify denying the still valid electoral vote of 2012 in order for "the people" to have a voice in Scalia's replacement. My point is to take Senator Grassley at his words, which he's simply abrogating to obtain an expected vote from a governmental body, rather than "the people."

I think you are right, Joe, that Trump would make big points for himself by doing this -- rebuffing a total-insider career politician like Grassley on behalf of "the people", the supposed source of populism.

Posted by: anoner | Nov 9, 2016 11:43:25 AM

anoner, words here must be used within our system.

And, at least this is what he will say, "the people" there means "to the extent they pick electors," not merely a simple majority vote count.

It's okay to push back against that.

Posted by: Joe | Nov 9, 2016 12:15:22 PM

Trump may well follow-through on his original list of appointees, which listed as his number one choice Steven Colloton on the 8th Circuit, who came from Iowa, thereby rewarding the establishment insider politician, Chuck Grassley. Colloton is very creative when it comes to drafting opinions that to ignore precedent.

Since Trump is losing the popular vote, he could distinguish himself from George W. Bush and achieve a significant measure of healing all by himself by nominating Judge Garland and holding Grassley to his own pledge to let the people voting in this election have a voice on Scalia's replacement. That would indeed be a change from insider government "business as usual."

Posted by: anoner | Nov 9, 2016 12:16:16 PM

Joe, Grassley is himself not operating "within our system" by refusing to proceed with the President's long-standing nomination. That being the case, I take him at the clear words he used to halt the government, including the Court, from operating as it should.

It's totally topsy-turvy to in hindsight attribute Grassley's invocation of the right of "the people" as now meaning the right of "the electoral college," which by historical accounts was intended to ensure the right of an "elite" and educated group to save less informed citizens from themselves, and to save a greater role for states where fewer of "the people" live against larger states where more of "the people" live.

Posted by: anoner | Nov 9, 2016 12:34:39 PM

anoner--Bush tried to be good by nominating failed Clinton nominees---what did it get him?

Posted by: federalist | Nov 9, 2016 12:40:46 PM

anoner, I am sympathetic, but my understanding of their gambit was to hope to win the Senate and the presidency. That is what they were selling -- let the election decide.

"The people" was within that context. In our system, the election -- now even after 2000 many don't realize this of course -- very well might mean the winner gets less votes. Clinton lost her first nomination in 2008 because the rules of the Democratic Party at the time allowed Obama to win with less votes too as someone noted on Twitter.

The "mandate" here overall is rather fictional on some level. I saw numbers where about half of the electorate didn't vote for POTUS and Clinton won the popular votes by a hair via winning a 1/4 of the total electorate. That's a basic failure of civics.

Posted by: Joe | Nov 9, 2016 12:43:58 PM

Bush got various of his policies passed with Democratic support, ultimately (after the Gang of 14 decision) most of his controversial appellate judges were confirmed (maybe the well cited exception of Miguel Estrada -- only 55 after all -- should be chosen), he was re-elected, multiple Democrats supported his war policy etc.

Bush also didn't have the same need to make an effort there, though the close election & losing the Senate was a warning sign. He already was seen as a credible choice, didn't have some sizable dissenting "Never Bushers" among his own party etc.

Posted by: Joe | Nov 9, 2016 12:48:42 PM

I agree with @joe that Trump cares little for the workings of SCOTUS, if Obama thought the court was too cloistered can you imagine what a dedicated people person like Trump thinks of it? I assume whoever gets the nod will be the result of a clear horse trade for something else Trump wants and that will be that...renominating Garland is an interesting gambit but it would make the Senate leadership look foolish...and well maybe that IS a point in its favor...I don't know.

I have to be honest. I predicted (yes, in writing just not on this blog) a Trump general election win back in December of 2015. But now that it is actually here I am as "at sea" as everyone else. How he negotiates DC remains to be seen.

Posted by: Daniel | Nov 9, 2016 2:59:21 PM

FoxNews reported Trump planned on nominating Obama for SCOTUS. They were all so happy in the news room because they will still have something to gripe about.

Posted by: George | Nov 9, 2016 10:16:02 PM

As of today, Hillary has 200,000 more votes than Trump. Something is rotten in the state of the U.S.

Posted by: Peter | Nov 10, 2016 5:36:48 PM

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