Judge Ray Kethledge may not have as much media buzz as his competitors Kavanaugh or Barrett, but he remains one of the frontrunners for a Supreme Court nomination. His conservative record, alongside excellent credentials and a midwestern background, make him a strong candidate for the nomination.
Name: Raymond Michael Kethledge
Current Position: Judge on the U.S. Court of Appeals for the Sixth Circuit (since 2008)
Education: B.A. from the University of Michigan; J.D. from the University of Michigan Law School
Clerkships: Judge Ralph Guy on the U.S. Court of Appeals for the Sixth Circuit; Justice Anthony Kennedy on the U.S. Supreme Court
Prior Experience: Judiciary Counsel to Sen. Spencer Abraham (R-Mich.); Counsel at Ford Motor Company; Private Practice in Detroit and Troy, Mich.
Kethledge has served on the U.S. Court of Appeals for the Sixth Circuit since 2008. In his time, he has authored over 500 opinions, in which he has lain out a conservative-libertarian judicial philosophy. Here are some of the key cases that Kethledge has decided:
- United States v. Carpenter – This case involved a challenge to the use of cell tower locational data, obtained from phone companies without a warrant, to convict a Defendant. Kethledge wrote for the panel majority in holding that the obtaining of cell tower locational data without a warrant did not violate the Fourth Amendment. The Supreme Court reversed Kethledge in a 5-4 vote.
- United States v. Gabrion – This case involved a murder that was committed in Michigan. The defendant was convicted in the federal death penalty trial, and, in the penalty phase, sought to present evidence that the murder was committed in the state of Michigan, not on federal park grounds. The defendant argued that this location evidence was mitigating as Michigan did not have a death penalty. Kethledge wrote for an en banc court in holding that the evidence was properly excluded as it was “irrelevant to a reasoned moral response to Gabrion’s background, character, and crime.” In dissent for four judges, Judge Karen Nelson Moore noted that Kethledge’s opinion prevents the defendant from presenting constitutionally relevant evidence based on the judge’s view of its “moral relevance.”
Suits Against Government
- Wheaton v. McCarthy – This case involved a challenge to the Ohio Department of Medicaid’s policy of not including the spouse as part of a Medicaid benificiary’s families in calculating aid. Kethledge wrote for the panel in holding that this interpretation was inconsistent with federal law.
- United States v. NorCal Tea Party Patriots – In declining to grant a writ of mandamus to the IRS blocking the District Court’s discovery order, Kethledge sharply criticized the conduct of the IRS in allegedly discriminating against conservative groups in 501(c)(3) applications.
- In re Dry Max Pampers Litigation – This case involved a class action suit against Proctor & Gamble Co. (P&G), which produces Pampers diapers. After a certain kind of Pampers diapers proved to cause severe diaper rash, consumers brought a class action suit against P&G, and the District Court approved a settlement that released $1000 per affected child to all named class members, and included a legal fee of $2.7 million. Kethledge wrote for the panel majority in rejecting the settlement, finding that it benefited counsel more than the members of the class. Judge R. Guy Cole dissented, stating that Kethledge “does not apply this Court’s established multi-factor tests for settlement fairness and the reasonableness of fee awards. [citations omitted] Instead, the majority fashions a new test based largely on dicta from other circuits…”
Why Trump Could Choose Kethledge as His Nominee
As a young, strongly conservative judge, Kethledge seems almost tailor-made for a judicial nomination from the Trump Administration. Furthermore, while he lacks the Harvard/Yale pedigree Trump is seeking, Kethledge still has a Supreme Court clerkship, as well as success as one of the best law schools in the country. Additionally, sources claim that Kethledge’s interview with the President (always a key criteria) went exceedingly well.
Why Trump Would Not Choose Kethledge as His Nominee
Overall, Kethledge’s record has reflected a libertarian philosophy. As such, Kethledge has shown a willingness to rule against the government when he perceives that it has exceeded its authority. This could make Kethledge a more unpredictable presence on the Supreme Court, which may lead Trump to another candidate.
Expected Lines of Attack
Having both ruled for and against the government, Kethledge may draw criticism for his criminal justice rulings both from the left and the right. He will likely also draw criticism for his Carpenter ruling being overturned by the Supreme Court.
Likelihood of Nomination
Kethledge may not have gotten the attention that Kavanaugh and Barrett have, but he is just as likely to get the nomination. Given his strongly conservative record, impressive credentials, and his favorable interview, we would not be surprised if Kethledge was the ultimate choice.
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