President-elect Donald Trump is that rare president who will nominate a Supreme Court justice almost immediately after taking office.
Trump is expected to act quickly to fill the seat of Justice Antonin Scalia, who died in February. During a Thursday interview with Sean Hannity, Trump announced he’s narrowed his original list of 21 people to “probably three or four.”
“They are terrific people,” Trump said on Fox News. “Highly respected, brilliant people. We’ll be announcing that pretty soon.”
Two of the remaining eight Supreme Court justices, Ruth Bader Ginsburg, 83, and Stephen Breyer, 78, are older than average for a justice and may choose to retire. One-third of the potential nominees on Trump’s list of 21 contenders are 50 or younger, and four are women.
This could present a historic opportunity for Trump to reshape the Supreme Court, author and presidential historian Craig Shirley says.
“With a vacancy and aging people on the court, just as there was a Reagan court and just as there was a Roosevelt court, we might see a Trump Supreme Court,” Shirley told The Daily Signal, adding:
It is less likely these justices will retire. It’s more likely they will go out feet first. When you’re in your 80s, you might as well show up at the office. You’re not going to take up water skiing.
White House press secretary Josh Earnest told The Daily Signal that President Barack Obama is well aware of coming changes on the high court, though Earnest said he hasn’t heard the president discuss it.
“I’m not aware that the president has spoken to this, either publicly or privately,” Earnest said. “I think the president’s expectation is that President Trump will fill vacancies on the Supreme Court by appointing people who are quite different than the kind of people that President Obama appointed.”
“President Trump will fill vacancies on the Supreme Court by appointing people who are quite different than the kind of people that President Obama appointed,” @presssec says.
Top Trump adviser Kellyanne Conway has said the president-elect is committed to choosing justices from the list of 21 candidates he released earlier this year.
Trump’s release of the list during the campaign was an unprecedented move, Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, noted after the election.
“Given the significance of the court to Trump’s voters, I’m confident that he will stand by his campaign promise to appoint someone from his excellent list of constitutionalist judges,” Severino said in a formal statement, adding:
While that still would leave the Supreme Court in a 4-4-1 balance, with Justice [Anthony] Kennedy as a swing vote, Trump is likely to have the opportunity to appoint additional justices, who can ensure that the Constitution is interpreted according to its text and original meaning and isn’t used as a vehicle for political policy goals.
Most on the list are state Supreme Court justices or U.S. Court of Appeals judges. The list include two individuals who have served in Congress and would have a political record to defend. Two brothers also are on the list.
Trump faced some criticism for lack of diversity, with eight white males among the 11 names on the initial list he released in May; his subsequent list in September included one South Asian and one Hispanic.
A Political Trail
At Senate confirmation hearings, Supreme Court nominees who already are judges typically avoid directly answering questions about how they would rule on a policy that might come before the nation’s highest court.
However, three of those on Trump’s list were elected by voters to offices that require taking public stances during the course of a campaign. Two of the three have gone on to become judges:
U.S. Sen. Mike Lee, R-Utah, is a big favorite of conservatives. Lee, 45, was also a strong critic of Trump during the presidential campaign. As a member of the Senate Judiciary Committee, Lee typically would be in the advise and consent role during confirmation hearings for judicial nominees. Before he was elected to the Senate in 2010, Lee served as an assistant U.S. attorney for Utah. He is a graduate of Brigham Young University Law School and clerked for Justice Samuel Alito.
Florida Chief Justice Charles Canady, 62, was a four-term Republican member of the U.S. House of Representatives in the 1990s. Canady was one of the impeachment managers that acted as a prosecuting team against President Bill Clinton during his Senate trial in 1999. Canady, on the state’s high court since 2008, was elevated to chief justice in 2010. He previously was a state appeals court judge. He is a graduate of Yale Law School.
Judge William H. Pryor Jr., a Bush appointee, has served since 2004 on the U.S. Court of Appeals for the 11th Circuit in Alabama. Pryor, 54, became Alabama’s attorney general in 1997 after his predecessor, Jeff Sessions, was elected to the U.S. Senate as a Republican. (Trump has announced he intends to nominate Sessions as U.S. attorney general.) Pryor was elected in his own right in 1998 as state attorney general and was re-elected in 2002. In 2013, he was confirmed to a term on the United States Sentencing Commission. Pryor received his law degree from Tulane.
State Supreme Court Justices
In recent years, presidents typically have plucked federal appeals court justices to serve on the Supreme Court.
Not since President Ronald Reagan nominated Arizona state appeals court judge Sandra Day O’Connor to the Supreme Court in 1981 has a state judge of any kind been elevated to the high court.
Trump’s list includes as many state supreme court justices as federal appeals judges. The inclusion of two district judges, however, means federal judges outnumber state judges:
Georgia Supreme Court Justice Keith Blackwell, named by Gov. Nathan Deal to the court 2012, previously was a state appeals court judge and state prosecutor. Blackwell, 41, was an assistant district attorney for Cobb County before becoming a deputy state attorney general. A graduate of the University of Georgia School of Law, Blackwell also has worked in private practice.
Colorado Supreme Court Justice Allison Eid, named to the state’s high court by then-Gov. Bill Owens, a Republican, in 2006, won 75 percent of the vote to retain the position. Eid, 51, previously was the state’s solicitor general. A graduate of the University of Chicago Law School, Eid clerked for U.S. Supreme Court Justice Clarence Thomas.
Michigan Supreme Court Justice Joan Larsen was named to the state’s high court by Gov. Rick Snyder, a Republican. Larsen, 48, in 2002 became an assistant attorney general in the Justice Department’s Office of Legal Counsel. Larsen, who also taught law at the University of Michigan. received her law degree from Northwestern and clerked for Scalia.
Utah Supreme Court Justice Thomas Lee is the brother of Mike Lee, so the list is no small achievement for the Lee family. Both men are the sons of former U.S. Solicitor General Rex Lee. Thomas Lee, 52, began serving on Utah’s high court in 2010, nominated by Gov. Gary Herbert, a Republican. (His brother was elected to the U.S. Senate that same year.) Lee previously was on the faculty of Brigham Young University Law School, where he continues to teach in an adjunct capacity. During the Bush administration, he was deputy assistant attorney general in the Justice Department’s Civil Division from 2004 to 2005. A graduate of the University of Chicago Law School, he clerked for Thomas.
Iowa Supreme Court Justice Edward Mansfield was appointed in 2011 by Gov. Terry Branstad, a Republican, and voters decided to retain him in 2012. Mansfield, 58, previously served on the Iowa Court of Appeals. He is a graduate of Yale Law School.
Minnesota Supreme Court Justice David Stras, 42, was appointed by Gov. Tim Pawlenty, a Republican, in 2010. He was elected to a six-year term in 2012. Before serving on the bench, Stras taught at University of Minnesota Law School. He received his law degree from the University of Kansas and clerked for Thomas.
Texas Supreme Court Justice Don Willett has served on the state’s high court since 2005, appointed by then-Gov. Rick Perry, a Republican, and re-elected twice by voters. Willett, 50, previously was a senior fellow at the Texas Public Policy Foundation. An adviser to George W. Bush’s gubernatorial administrations, Willett later served as a deputy assistant attorney general in the Justice Department’s Office of Legal Policy when Bush became president. He also was a deputy attorney general under then-Texas Attorney General Greg Abbott, now the state’s Republican governor. Willett received his law degree from Duke University.
Michigan Chief Justice Robert Young, 65, was appointed to the state’s high court in 1999 by then-Gov. John Engler, a Republican. He previously served as a judge on the Michigan Court of Appeals. He is a graduate of Harvard Law School.
Federal Appeals Judges
Trump could follow the model of most recent Supreme Court nominations by choosing a federal appeals court judge.
Two of President Barack Obama’s nominees were appellate judges—Sonia Sotomayor, confirmed by the Senate, and Merrick Garland, his pick to replace Scalia, who has not been confirmed.
President George W. Bush nominated John Roberts and Samuel Alito, both former appeals court judges who were successfully confirmed.
Obama also successfully nominated Elena Kagan, a former solicitor general who never before served as a judge. Bush nominated and later withdrew White House counsel Harriet Miers, also never a judge.
President Bill Clinton’s two Supreme Court appointees, Ginsburg and Breyer, were both federal appeals court judges.
President George H.W. Bush named David Souter, a former appeals court judge. Reagan’s other two nominees, Scalia and Kennedy, were both federal appeals court judges.
Appeals court judges on Trump’s list are:
Judge Steven Colloton of the U.S. Court of Appeals for the 8th Circuit in Iowa, was appointed in 2003 by George W. Bush. Colloton previously served as a U.S. attorney for the Southern District of Iowa. The 53-year-old graduate of Yale Law School clerked for the late Supreme Court Chief Justice William Rehnquist.
Judge Neil Gorsuch, 49, of the U.S. Court of Appeals for the 10th Circuit in Colorado, was appointed in 2006 by Bush. Before that, Gorsuch was a deputy assistant attorney general at the Justice Department. The Harvard Law School graduate clerked for both Kennedy and Byron White.
Judge Raymond Gruender, 53, was named by Bush to the U.S. Court of Appeals for the 8th Circuit in Missouri in 2004. He previously was a prosecutor and served as the U.S. attorney for the Eastern District of Missouri. He received his law degree from Washington University in St. Louis.
Judge Thomas Hardiman was appointed by Bush in 2007 to the U.S. Court of Appeals for the 3rd Circuit in Pennsylvania. Hardiman, 51, previously was a federal district judge for the Western District of Pennsylvania, a position he took in 2003. A Notre Dame graduate, Hardiman practiced law in Washington and Pittsburgh.
Judge Raymond Kethledge was named by Bush to the U.S. Court of Appeals for the 6th Circuit in Ohio in 2008. Kethledge, 50, previously served as judiciary counsel to then-U.S. Sen. Spencer Abraham, R-Mich. He also was in-house legal counsel for Ford Motor Co. The University of Michigan graduate clerked for Kennedy.
Judge Margaret A. Ryan of the U.S. Court of Appeals for the Armed Forces was appointed by Bush in 2006. As a military judge and a veteran, she stands out among other contenders. Ryan, 52, served in the Marine Corps in the Philippines and during the Persian Gulf War. She graduated from Notre Dame Law School on a military scholarship and served as a JAG officer for four years. She clerked for Thomas.
Chief Judge Timothy Tymkovich of the U.S. Court of Appeals for the 10th Circuit in Colorado, a Bush appointee, has served since 2003. Tymkovich, 60, previously was Colorado’s solicitor general. He is a graduate of the University of Colorado College of Law.
Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit in Wisconsin was named by Bush in 2004. Sykes, 58, had been a justice on the Wisconsin Supreme Court since 1999. Before that, she was a trial court judge in both civil and criminal matters. She received her law degree from Marquette.
Federal District Judges
Federal district judges are also rare Supreme Court nominees, but Trump’s list includes two:
Judge Federico Moreno of the Southern District of Florida is a member of the Judicial Conference of the United States, the national policymaking body for the federal courts. Moreno, 64 and Hispanic, appointed in 1990 by President George H.W. Bush, previously was a state and county judge in Florida. He is a graduate of the University of Miami School of Law.
Judge Amul Thapar of the Eastern District of Kentucky was appointed by the younger Bush in 2007. He has taught law students at the University of Cincinnati and Georgetown. Thapar, 47, previously served as an assistant U.S. attorney in Washington, D.C., and the Southern District of Ohio. He is of South Asian descent. Just before being named to his judgeship, Thapar was U.S. attorney for the Eastern District of Kentucky. He got his law degree from the University of California, Berkeley.
This story was updated to include Trump’s comments on “Hannity.”
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