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December 16, 2016

Circuit judges Diane Sykes and William Pryor reportedly on top of Prez-Elect's SCOTUS short-list

This new CNN article reports that we may not be getting a SCOTUS nominee from Prez-Elect Donald Trump anytime soon and that the current front-runners are both federal circuit judges. Here are the details:

It will be some time before Donald Trump announces a nominee to fill the vacancy left by Antonin Scalia, according to transition insiders.

But two names continue to emerge to the top of the president elect's list of potential Supreme Court justices. Judges Diane Sykes and William Pryor are among the top contenders, according to multiple sources

The Supreme Court vacancy is "actively being discussed," but there is no timetable at the moment, Trump transition aide Jason Miller told reporters Thursday. "The President-elect, he had previously put out a list of 20 very qualified individuals from which he would select. I know that they have continued to narrow that list down," Miller said. "He himself has said that's probably a shorter list of 5 or 6 folks that are near the top of that, that's being narrowed down to. And again, but this is another one where it's an absolute utmost priority, so we need to make sure we get this one right."

Trump first mentioned Sykes and Pryor after a February debate -- and the two conservatives are among the only ones Trump has mentioned by name. However, aides acknowledge that given the size of the list and Trump's previous approach to filling vacancies, things are subject to change.

Sykes, 58, sits on the 7th Circuit Court of Appeals. The Marquette University School of Law grad voted to uphold Wisconsin's voter ID law and also sided with businesses in challenging the Affordable Care Act's contraception mandate. While some conservatives view Sykes favorably, others expressed concern given her age.

Pryor, a staunch conservative, called Roe v. Wade, the 1973 decision making abortion legal, the "worst abomination in the history of constitutional law." The 54-year-old Tulane Law University grad sits on the 11th Circuit Court of Appeals.

As regular readers should know, Judge Pryor would be an especially interesting pick for sentencing fans because of his recent and continuing service as a member of the US Sentencing Commission. Indeed, if Judge Pryor were to get the nomination, an interesting issue would arise concerning his continued service as a member of the USSC. I do not think there are any major legal or ethical problems with a sitting SCOTUS Justice also being an active member of the USSC, but I suspect others might believe it more appropriate for Judge Pryor to resign his position on the Commission if elevated to SCOTUS.

A few prior related Trumpian SCOTUS posts:

December 16, 2016 at 09:47 AM | Permalink


Prof., the article quotes Prior as saying that Roe v. Wade is the "worst abomination in the history of constitutional law." On the contrary, Roe v. Wade is a great step forward in the liberation of women. For an example of the "worst abomination" Mr. Prior should examine Dred Scott v Sandford.

Posted by: anon | Dec 16, 2016 10:25:06 AM

It may be a great decision from a desirability standpoint but I would agree with him that it is terrible in terms of legal reasoning. I happen to care much more about process than result and I believe Roe fails completely on that score. Now, to say that it is the very worst decision out there, I would say that is going too far.

Posted by: Soronel Haetir | Dec 16, 2016 10:49:07 AM

As a matter of legal reasoning, Roe v. Wade is not "terrible" though I think the privacy section could have used a bit more work. And, it tried to do too much at once regarding doctrine -- that should have been handled later. But, the justices didn't object.

The technical aspects of the opinion seemed reasonable. The section on how "person" (which not a single justice disagreed with) in a constitutional sense is post-natal. A long history section that showed how abortion law and the reasons for it developed. A discussion how a range of cases developed a right to privacy involving family life. And, a sensible trimester scheme balancing state interests and women's rights. Doe v. Bolton also was fairly well reasoned applying the rules to the Georgia's law.

Blackmun wasn't a great craftman, but we can cite various opinions not very well crafted. Roe is focused upon because of what it is about there.

Posted by: Joe | Dec 16, 2016 12:53:13 PM

This blog is about sentencing law but a justice does a range of things. A person who singles out Roe v. Wade like this is not someone I personally think would be a good choice. This includes as a matter of basic liberty.

Posted by: Joe | Dec 16, 2016 12:55:05 PM

As this early comment thread highlights, the nomination of Judge Pryor would immediately put Roe v. Wade and its progeny at the focal point of all robust discussions of his nomination and the future of SCOTUS. That itself might be a key reason Judge Pryor is now mentioned as being at the top of Trump's short list (e.g., this is what the conservative/evangelical base wants to hear), but I also think it could be a reason Judge Pryor does not ultimately get the nomination (at least not the first one).

Posted by: Doug B. | Dec 16, 2016 12:58:48 PM

While Roe might be an issue for Pryor, it would probably be an issue for any replacement that Trump names. Given that the nominee will be replacing Scalia and how much Republicans have said that they admire Scalia, I would not be shocked if a key theme in the hearings is trying to force the nominee to agree with or disagree with some of the unusual positions that Scalia took over the years. I think from a strategic perspective that the Scalia replacement would be a good time for Trump to have the fight on Roe in order to inoculate future nominees on the Roe issue. (Particularly if the Secretary of State nomination goes south, the Supreme Court nomination would be an excellent strategic fight for Trump if he wants to claim that he is fighting the Washington establishment.)

Posted by: tmm | Dec 16, 2016 4:03:57 PM

I think it would be an issue for any nominee but there are shades there.

Pryor might help the Republican base here, but as a basic matter of strategy, somewhat sensible to choose someone who is likely to get to a comparable place, but are somewhat more low key about it. Roberts, e.g., supported basic right leaning issues, but put a pleasant face on things. OTOH, we are replacing St. Scalia, and rubbing people's face into it is part of his cachet. Not to me an ideal aspect of his jurisprudence, but ymmv.

Posted by: Joe | Dec 17, 2016 1:41:52 PM

Let's pray that they have common sense and follow the Law (not corporation law).

Posted by: LC in Texas | Dec 18, 2016 4:02:15 PM

If the nomination of Garland teaches anything it is that no nominations is a certainty, for anyone. So I think this idea that Doug proposes about holding picks is folly. You pick the best one you have at the time and if there is another opportunity then next person up.

Posted by: Daniel | Dec 18, 2016 9:46:16 PM

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