Thirteen Candidates the Next Democratic President Should Seriously Consider For the Supreme Court

It’s been a busy week for SCOTUS-nerds.  Last Monday, the Supreme Court kicked off for another blockbuster session, and last Tuesday, the liberal judicial group Demand Justice kicked off the latest bout of SCOTUS fever with its list of 32 prospective nominees under a Democratic president.  The Demand Justice list has received some criticism for not being “realistic,” presumably by which the critics argue that the names of the list are likely to be overlooked for more mainstream candidates.  While I’ve discussed that argument elsewhere, it is worth wondering: what would a “realistic” Democratic shortlist look like?

If a Democratic presidential candidate is foolish enough to task me with compiling their Supreme Court shortlist, here are the names I would suggest. 

Chief Justice Cheri Beasley – North Carolina Supreme Court

Chief Justice Beasley made history earlier this year when she became the first African American woman to be Chief Justice of the North Carolina Supreme Court.  While she has never served on the federal bench, the 53-year-old Beasley has twenty years of judicial experience, as well as experience in indigent defense, which is lacking in all of the current Supreme Court justices.

Justice Richard Bernstein – Michigan Supreme Court

With diversity key on the minds of many Supreme Court watchers, Justice Richard Bernstein would be the first Supreme Court nominee who has been diagnosed as legally blind.  The 44-year-old Bernstein has demonstrated his intellect and his commitment for the rights of the disabled throughout his professional career and would add the perspective of a solo practitioner to the Supreme Court.

Judge Gregg Costa – U.S. Court of Appeals for the Fifth Circuit

The 47-year-old Costa currently serves on one of the most conservative courts in the country, where he has demonstrated a balanced and principled approach to the law.  Costa, who clerked for the strongly conservative Chief Justice William Rehnquist, won the support of Sen. Ted Cruz in his appointment to the Fifth Circuit, demonstrating his evenhanded approach to the law.

Justice Mariano-Florentino Cuellar – California Supreme Court

While there are several extraordinarily qualified SCOTUS candidates on the California Supreme Court, my personal favorite is Justice Tino Cuellar.  The 47-year-old Cuellar would be the first Hispanic male on the Supreme Court, and would bring extensive experience with administrative and constitutional law, providing a liberal intellectual counterweight to the originalists on the court.  It doesn’t hurt that he is arguably the most liberal voice on the court.

Judge Michelle Friedland – U.S. Court of Appeals for the Ninth Circuit

The 47-year-old Friedland is the youngest Democratic appointee on the federal appellate bench and, as such, cannot be ignored.  Friedland has stellar credentials for the Supreme Court, having clerked for Justice Sandra Day O’Connor and on the U.S. Court of Appeals for the D.C. Circuit.  Despite the Ninth Circuit’s reputation as a conservative bugbear, Friedland is hardly the second coming of William Douglas.  Rather, she has developed a moderate-liberal brand of jurisprudence on the Ninth Circuit, going where the law takes her and frequently getting the votes of more conservative judges.

Justice Melissa Hart – Colorado Supreme Court

The 49-year-old Hart has the least amount of judicial experience of any candidate on this list.  Yet, her stellar credentials (clerked for Judge Guido Calabresi and Justice John Paul Stevens) make her impossible to ignore.  Before she was appointed to the Colorado Supreme Court in 2017, Hart was a longtime legal academic, chairing the Byron White Center for the Study of American Constitutional Law at the University of Colorado Law School.  As such, many compare Hart to Justice Elena Kagan (also a longtime academic before she joined the bench), and the similarities may bear out on the bench.

Judge Jane Kelly – U.S. Court of Appeals for the Eighth Circuit

Judge Kelly is my personal favorite for the Supreme Court.  The Iowan graduated from Harvard Law School alongside President Obama in 1991.  However, rather than taking a traditional law firm position, Kelly chose to be a public defender, spending her entire career defending the rights of indigent defendants.  She continued this work even as she became a victim of crime herself, being attacked and left barely conscious while jogging.  Kelly would provide a refreshingly different perspective on the Supreme Court, particularly on criminal justice issues.

Judge Patricia Millett – U.S. Court of Appeals for the D.C. Circuit

It is my personal (and completely uninformed) belief that, had Hillary Clinton won the 2016 election, Millett would have been her choice to replace Justice Scalia on the Supreme Court.  The 56-year-old Millett is the oldest candidate on this list but still wins out due to quite possibly being the most qualified candidate in the country.  Not only is Millett on the second most important court in the country, but, at the time of her confirmation, she had argued more cases before the Supreme Court than any other female advocate.  Needless to say, there will be no learning curve for a Justice Millett.

Justice Raheem Mullins – Connecticut Supreme Court

The 41-year-old Mullins is the youngest candidate on this list.  Despite his youth, however, Mullins does not lack judicial experience, having already been on the bench for seven years.  Before he joined the bench, Mullins served as a prosecutor, but has proved to be a strong voice on the Connecticut Supreme Court, willing to go where the law takes him.  For example, Mullins wrote for the Court in ordering the release of police records regarding Adam Lanza, the shooter in the Sandy Hook shooting of 2012.  As a young, African American jurist, Mullins provides an intriguing possibility if Justice Clarence Thomas vacated his seat.

Justice Adrienne Nelson – Oregon Supreme Court

Justice Nelson has been breaking barriers throughout her life, including in high school, where she and her mother successfully sued to be named valedictorian of her graduating class, instead of a white student with a lower GPA.  Last year, the 52-year-old Nelson became the first African American on the Oregon Supreme Court.  If confirmed to the Supreme Court, Nelson would bring extensive experience working in indigent defense and in low income communities.  Furthermore, for those who may question her credentials, Nelson has been on the bench longer than both Justices Gorsuch and Kavanaugh.

Judge Robin Rosenbaum – U.S. Court of Appeals for the Eleventh Circuit

The 53-year-old Rosenbaum has developed a reputation as the conscience of the Eleventh Circuit.  A member of that court’s liberal wing, who frequently find themselves in dissent, Rosenbaum has won plaudits for her respectful and reasonable opinions.  While Justice Sonia Sotomayor became the first judge in decades to have experience as a trial court judge, a Justice Rosenbaum would beat her out by one step.  This is because Rosenbaum has served as a U.S. Magistrate Judge, a U.S. District Judge, and a U.S. Circuit Judge.  It is a testament to Rosenbaum’s stellar reputation in Florida that she has won near unanimous approval at each of those steps.

Judge Srikanth Srinivasan – U.S. Court of Appeals for the D.C. Circuit

There may not be a better testament to Judge Srinivasan’s reputation than the fact that he won unanimous approval to one of the most important courts in the country at a time when judicial battles were at their most heated.  During his confirmation to the D.C. Circuit, Srinivasan won plaudits from both sides of the aisle for his distinguished career (including a clerkship with Justice Sandra Day O’Connor) and his apolitical background.  On the D.C. Circuit, Srinivasan has served as a liberal counterweight, moderating the conservative trend of the court.  Additionally, if confirmed, Srinivasan would be the first Asian American, Indian American, and Hindu American on the Supreme Court.

Judge Paul Watford – U.S. Court of Appeals for the Ninth Circuit

The 52-year-old Watford is probably the most likely judge to see a promotion to the U.S. Supreme Court, with stellar credentials and a razor-sharp intellect.  When Watford was first nominated for the Ninth Circuit in 2011, Republicans recognized the telegenic young attorney as a future SCOTUS-shortlister and lined up to oppose him, despite not really having a basis for doing so.  Luckily for Watford, enough Republicans broke from the pack and supported him to allow him to clear the then-60 vote cloture threshhold and be confirmed.

While the former federal prosecutor, law firm partner, and SCOTUS clerk (Ginsburg) wouldn’t exactly be forging a new career path to the Supreme Court, it’s hard to deny Watford’s commitment to the law and his influence as a jurist.

 

In compiling any finite list, it is inevitable that qualified candidates are left out, and the exclusion of such names such as Justice Leondra Krueger, Judge David Barron, and Judge Adalberto Jordan is not a statement about their fitness.  Rather, the overall goal of any such list is, ultimately, marketability, which means that you have to create a broadly acceptable group.  Ultimately, each of these candidates has the ability and the experience to hit the ground running if confirmed to the Supreme Court.  And the nation would be well-served with each of them.

 

Initial Thoughts on the Demand Justice Shortlist

On May 19, 2016, then candidate Donald Trump unveiled a list of thirteen judges, pledging only to appoint candidates to the Supreme Court from that list.  The intent of the list was to shore up flagging conservative support for the candidate, and it worked.  The list, along with Senate Majority Leader Mitch McConnell’s refusal to fill the vacancy created by Justice Antonin Scalia’s death, meant that the Supreme Court was a key issue in the 2016 Presidential election, and conservative judicial voters carried Trump to a narrow victory.

So far, no Democratic presidential candidate has taken a page from Trump’s playbook and released their own list, but liberal judicial group Demand Justice has taken up that mantle, releasing a list of 32 lawyers, law professors, and judges for appointment to the Supreme Court.  The list has attracted both praise and criticism, including from those who have argued that the list is not even close to a plausible Democratic shortlist.  However, Demand Justice is not running for President.  Where Trump’s list was intended to convince conservatives that he can be trusted to appoint “safe” picks, Demand Justice’s shortlist is seeking something different: to remind progressives that there are alternatives to the traditional appellate hunting grounds for court appointments.  In that sense, the list has been successful.

That being said, let’s break down the names further.

Demographic Diversity

Demographic diversity was obviously important to Demand Justice’s compilers, as the list reflects nominees from across the racial and ethnic spectrum.  The list is majority female and majority POC.  In fact, there is only one cisgender straight white male on the list: Philadelphia D.A. Larry Krasner.  Rather than being a coincidence, this is likely a deliberate effort on Demand Justice’s part to craft a list that is more diverse than the names typically considered.

Geographic Diversity

Let us look at the home states of the last five Democratic nominees to the Supreme Court: Ginsburg (N.Y./D.C.); Breyer (Mass.); Sotomayor (N.Y.); Kagan (Mass./D.C.); Garland (D.C.).  In fact, the last Democratic SCOTUS nominee who was not from New York, D.C., or Massachusetts was Homer Thornberry in 1968, and the last successful appointment not from one of these three states/districts was Arthur Goldberg in 1962 (and even he was serving as a cabinet official in D.C. before his appointment).  Unfortunately, the Demand Justice list is also heavy with nominees from these three states, although you can also add California, which hosts a fair number of shortlisters.  Leaving out these four states, you have Krasner from Pennsylvania; Judge Jane Kelly from Iowa; Judge Carlton Reeves from Mississippi; Judge Richard Boulware from Nevada; and Justice Anita Earls from North Carolina.

Educational Diversity

Much has been made of the Harvard-Yale duopoly on the Supreme Court, and this list is unlikely to change that too much.  Of the 32 names on that list, 19 are alumni of either Harvard or Yale (or in some cases, both).  Of those who are not, only ONE attended a non-top 20 law school (ACLU attorney Brigitte Amiri, who attended Northeastern Law).

Experiential Diversity

Here’s where this list differs the most from Trump’s.  Every single candidate on Trump’s shortlist was a judge (either on state or federal court).  In contrast, the majority of Demand Justice’s list has no judicial experience.  Only two serve on the U.S. Court of Appeals (Judges Jane Kelly and Nina Pillard), while another two serve as U.S. District Court Judges (Judges Richard Boulware and Carlton Reeves).  Four serve on State Supreme Courts (Justices Liu, Cuellar, and Krueger from the California Supreme Court and Justice Earls on the North Carolina Supreme Court).  The remaining twenty four (75%) have no judicial experience.

Rather, the list is heavy with law professors, civil rights lawyers, and even includes three elected officials (one of whom, Rep. Katie Porter, was a former academic).  The list does include a fair number of former clerks.  Nine on the list clerked on the U.S. Supreme Court including:

  • 3 Blackmun clerks (Michelle Alexander; Pam Karlan; Cecillia Wang)
  • 1 Stevens clerk (Leondra Kruger)
  • 1 O’Connor clerk (James Forman)
  • 2 Ginsburg clerks (Goodwin Liu; M. Elizabeth Magill)
  • 1 Breyer clerk (Timothy Wu)
  • 1 Sotomayor clerk (Melissa Murray)

Age and Youth

One factor that Republican Administrations tend to prize in their appointments is youth, generally selecting nominees in their 40s and early 50s, while Democrats tend to choose older judges with more experience.  While there are a handful of younger picks on the list, for the most part, the Demand Justice continues the pattern of older Supreme Court picks.

By mid-2021, which is the earliest that a Democrat can expect to fill a Supreme Court vacancy, seven members on the list would be sixty or above (Becerra; Earls; Karlan; Krasner; Minter; Pillard; Stevenson).  If we go to 2025, seventeen fall into that category.

Overall Analysis

Between the age issue and the judicial experience issue, one can see why some would criticize this list as being unrealistic.  However, as noted above, Demand Justice is not making appointments.  Its goal here is to push the conversation about Democrats towards nominating progressives for the bench, and it has done so here.

Furthermore, not everyone on Trump’s own lists was a plausible Supreme Court choice (did anyone realistically believe that Trump would appoint Michigan Supreme Court Justice Robert Young to the Supreme Court).  Rather, for many, placement on the list was intended to raise their profile before an expected lower federal appointment.  It is for this reason that so many names on the list found their way onto the federal bench.  Similarly, don’t be surprised if a President Warren or Sanders or Biden appoints Dale Ho to the Second Circuit; or Deepak Gupta to the D.C. Circuit; or Katie Porter to the Ninth Circuit.  As such, the greatest impact of this list may well be on the courts of appeals.

 

Meet the Shortlisters: Raymond Kethledge

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.

Vital Statistics

Name: Raymond Michael Kethledge

Age: 51

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.

Jurisprudence

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:

Criminal Law

  • United States v. CarpenterThis 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. GabrionThis 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. McCarthyThis 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.

Civil Law

  • 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.

Meet the Shortlisters: Brett Kavanaugh

Judge Brett Kavanaugh currently serves on the second most powerful court in the country: the D.C. Circuit.  Since 2006, Kavanaugh has served as the intellectual center of the D.C. Circuit’s conservative wing.  This record of jurisprudence has set Kavanaugh to replace the Justice he once clerked for: Justice Kennedy.

Vital Statistics

Name: Brett Michael Kavanaugh

Age: 53

Current Position: Judge on the U.S. Court of Appeals for the D.C. Circuit (since 2006)

Education: B.A. from Yale; J.D. from Yale Law School

Clerkships: Judge Walter Stapleton, U.S. Court of Appeals for the Third Circuit; Judge Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit; Justice Anthony Kennedy, U.S. Supreme Court.

Prior Experience: Solicitor General’s Office, Department of Justice; Associate Independent Counsel, Whitewater Investigation; Private Practice; Associate Counsel and Assistant to the President for President George W. Bush

Jurisprudence

Kavanaugh has served on the U.S. Court of Appeals for the D.C. Circuit since 2006.  During his twelve years on the court, Kavanaugh has authored approximately 270 majority opinions, concurrences, and dissents.  These opinions generally establish Kavanaugh as one of the most conservative judges on the court.

Given the D.C. Circuit’s jurisdiction over many administrative law cases, Kavanaugh has written extensively in evaluating agency regulations and decisions.  For example, after a panel of the D.C. Circuit upheld net neutrality regulations passed by the Federal Communications Commission, Kavanaugh dissented from denial of rehearing en banc, arguing that net neutrality violated both Congress’ grant of power to the agency and the First Amendment.  See United States Telecom Ass’n v. Fed. Commc’ns Comm’n, 855 F.3d 381, 417 (D.C. Cir. 2017).  In another case, Kavanaugh found that the Environmental Protection Agency was statutorily required to consider the costs of emission control in issuing regulations.  White Stallion Energy Cntr. LLC v. EPA, 748 F.3d 1222, 1259 (D.C. 2014).  This holding was ultimately affirmed by the Supreme Court.  Michigan v. EPA, 135 S. Ct. 2699, 192 L. Ed. 2d 674 (2015).

In other cases Kavanaugh:

  • Dissented from a ruling requiring an immigrant minor who sought access to an abortion to be provided one.  Garza v. Hargan, 874 F.3d 735, 755 (D.C. Cir. 2017), cert. granted, judgment vacated sub nom. Azar v. Garza, 138 S. Ct. 1790 (2018).
  • Dissented from denial of en banc rehearing of a decision upholding a requirement that religious organizations not wishing to provide contraceptive coverage for employees participate in the opt out process.  Priests for Life v. U.S. Dep’t of Health & Human Servs., 808 F.3d 1, 14 (D.C. Cir. 2015).
  • Ruled that the structure of the Consumer Financial Protection Bureau (CFPB), which required the President to have cause before dismissing the head, was unconstitutional.  PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 165 (D.C. Cir. 2018).  This ruling was overturned by the D.C. Circuit en banc.  881 F.3d 75 (D.C. Cir. 2018).
  • Held that the Anti-Injunction Act barred plaintiffs from challenging the individual mandate of the Affordable Care Act.  Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011).
  • Held the Affordable Care Act did not violate the Origination Clause of the Constitution.  Sissel v. U.S. Dep’t of Health & Human Servs., 799 F.3d 1035, 1049 (D.C. Cir. 2015).

Why Trump Could Choose Kavanaugh as His Nominee

Trump has indicated that he is looking for a nominee with Ivy League credentials and a strong academic record.  Kavanaugh ticks off both boxes. Furthermore, Kavanaugh is generally strongly regarded as a judge and has developed a solidly conservative record on the D.C. Circuit.

Additionally, White House Counsel Don McGahn is particularly focused on Administrative Law when selecting judges.  Specifically, McGahn is looking for judges who oppose deference to administrative agencies and prefer a greater degree of judicial involvement in judging agency policy.  Kavanaugh’s record, more than that of any other shortlister, reflects this hostility to agency deference.

Why Trump Would Not Choose Kavanaugh as His Nominee

Kavanaugh is already facing a lot of pushback from social conservatives, who argue that his record shows an insufficient commitment to overturning Roe v. Wade.  Additionally, some senators have pushed back regarding Kavanaugh’s opinion in the Affordable Care Act cases, arguing that Kavanaugh failed to overturn the Act when he had a chance.

Expected Lines of Attack

While Kavanaugh is currently facing criticism from social conservatives, it is unlikely that such criticism would continue in a sustained fashion if he was selected as the nominee.  Rather, if nominated, Kavanaugh is more likely to face criticism from the left, who will criticize his willingness to overturn regulations (that they would argue are) needed to protect health and safety.  Kavanaugh may also be attacked for his work as part of the Whitewater Investigation, in the Bush Administration, and for writings on executive power and authority.

Likelihood of Nomination

Kavanaugh is likely the preferred candidate of White House Counsel Don McGahn.  In general, he is a candidate who is likely to unite the Republican caucus and has the best chance (of the current shortlisters) of securing Democratic support.  As such, despite the social conservative pushback, I expect Kavanaugh to be a strong contender for the nomination.

Meet the Shortlisters: Amy Coney Barrett

Judge Amy Coney Barrett has undergone a meteoric rise.  On the bench for less than a year and having practiced law for only two, Barrett is now a leading contender for the U.S. Supreme Court.  In the jockeying among various candidates on the shortlist, Barrett is the favorite of social conservatives, which may both hurt and assist in the nomination process.

Vital Statistics

Name: Amy Vivian Coney Barrett

Age: 46

Current Position: Judge on the U.S. Court of Appeals for the Seventh Circuit (since 2017)

Education: B.A. from Rhodes College; J.D. from Notre Dame Law School

Clerkships: Judge Laurence Silberman, U.S. Court of Appeals for the D.C. Circuit; Justice Antonin Scalia, U.S. Supreme Court

Prior Experience: Professor of Law at Notre Dame Law School from 2002 to 2017

Jurisprudence

Of all of Trump’s shortlist picks, Barrett has the least amount of judicial experience.  She has served on the U.S. Court of Appeals for the Seventh Circuit since October 2017, and has never been a judge before.  In her eight months on the bench, Barrett has authored just nine opinions, only one of which drew a dissent. Her opinions are outlined below:

Criminal

  • Schmidt v. FosterThis was a collateral challenge to the defendant’s murder conviction.  At his trial, the defendant had sought to use a provocation defense. To ensure that the defendant had an evidentiary basis for the defense, the trial judge interviewed him in an ex parte hearing, with the defense attorney present but unable to participate.  On habeas review, the majority of the Seventh Circuit overturned the conviction, finding that preventing the defendant from accessing his counsel during the ex parte hearing violated his rights under the Sixth Amendment.  Barrett dissented, arguing that there was no evidence that the defendant’s rights were violated.
  • Perrone v. United States – The defendant sought to withdraw a plea agreement he had made, arguing that his counsel had been deficient.  The defendant argued that his counsel should have informed him that the government needed to show that his distribution of cocaine was the but-for cause of the victim’s death.  Barrett rejected this argument, noting that, under the Strickland standard, the defendant would be unable to show that his deficient counsel prejudiced him.
  • United States v. Barnes – The defendant, in this case, sought to challenge his sentence, arguing that the court incorrectly used his local marijuana conviction to enhance his sentence.  Barrett rejected this argument, noting that the defendant failed to properly object to the enhancement, and, as such, forfeited the claim.

Civil

  • Wisconsin Central Ltd. v. TiEnergy, LLC.This case involved a suit to recover demurrage (statutory fees imposed when rail cars are unduly detained).  After a Wisconsin Central car was detained at TiEnergy’s facility, Wisconsin Central filed suit to recover the demurrage incurred.  Barrett wrote for the panel in finding that TiEnergy needed to reimburse the demurrage fees.
  • Goplin v. WeConnect, Inc. – This case turned on whether the plaintiff-employee was bound by an arbitration agreement in resolving his Fair Labor Standards Act (FLSA) claim against defendant-employer.  Barrett ruled that the arbitration agreement did not control, as the company mentioned in the agreement was AEI, not WeConnect. Barrett also rejected the defendant’s argument that AEI was merely the former name of WeConnect.
  • Fiorentini v. Paul Revere Life Insurance Co.The plaintiff, a business owner, received total disability coverage through insurance while undergoing cancer treatment.  After being cancer-free for five years, the plaintiff returned to work, and the total disability coverage ceased. Plaintiff filed suit for breach of contract, arguing that the side effects from the cancer treatment still left him disabled under the insurance agreement.  Barrett disagreed, finding that the plaintiff was able to conduct most of the essential functions of his position, and, as such, he was not totally disabled.
  • Dalton v. Teva North America – The plaintiff sued the manufacturer of an intrauterine device (IUD) after it broke during its removal.  Barrett affirmed the dismissal of the plaintiff’s claims, noting that Indiana law requires the use of expert evidence to prove causation, and the plaintiff had failed to present expert evidence.
  • Boogard v. Nat’l Hockey League – This was a wrongful death action brought by parents of a NHL player who died of a drug overdose.  Barrett affirmed the dismissal of plaintiffs’ claims, noting that the plaintiffs had failed to respond to the defendant’s 12(b)(6) motion, and had, in doing so, forfeited their claims.
  • Webb v. Financial Indus. Regulatory Auth. – This case involved a breach of contract action brought against FINRA based on the failure to train arbitrators.  Barrett wrote for the panel majority in dismissing the claim, finding that the amount in controversy requirement was not satisfied for diversity jurisdiction.  Judge Kenneth Ripple dissented, arguing that, accepting the plaintiffs’ claims, the amount had been satisfied.
  • Walton v. EOS CCAThis suit challenged a debt collector’s practices under the Fair Debt Collection Practices Act.  Barrett held that the collector had met their requirements under federal law.

 

Academic Writing

As a law professor for sixteen years before she joined the bench, Barrett was fairly prolific in detailing and explaining her view of the law.  In her academic writings, Barrett occasionally took on controversial positions.

Most notably, in 2003, Barrett published an article in the University of Colorado Law Review calling into question the application of stare decisis in certain cases.  The article, titled Stare Decisis and Due Process argues that, just as the due process clause limits the application of issue preclusion (or collateral estoppel), it should similarly limit the application of stare decisis.  Barrett argues that a more flexible application of stare decisis is not only consistent with history, but would not impair the appropriate value of precedent.  Barrett was questioned on this “flexible” view of stare decisis during her confirmation hearings, and the issue is likely to come up again if she is elevated.

Additionally, in an article titled Catholic Judges in Capital Cases, Barrett debates whether a Catholic judge would be required to recuse themselves in capital cases based on their religious objections to the death penalty.  Barrett’s ultimate conclusion in the article is as follows:

“Judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge.  They should, however, conform their own behavior to the Church’s standard.”

This conclusion led to criticism suggesting that Barrett was advocating that a judge base their decisions on church policy rather than the law.  Such criticism was, in turn, dismissed by some commentators as anti-Catholic.

Why Trump Could Choose Barrett as His Nominee

In his nominee, Trump is seeking someone with Ivy League credentials and a long academic record.  While Barrett is not an Ivy League alumnus, as a Supreme Court clerk, her credentials rival those of any Yale or Harvard graduate.  Furthermore, Barrett has a wider and stronger academic record than any of Trump’s other finalists.

Furthermore, Barrett’s selection makes sense politically.  First, Barrett is a woman, and thus, harder to caricature as a conservative extremist.  Second, Barrett has strong support from social conservatives, a key constituency in the Supreme Court fight.  Third, Barrett is from Indiana, putting Sen. Joe Donnelly (D-Ind.) in an impossible position.  If he opposes Barrett, he risks alienating the center-right voters he needs to win re-election.  If he supports Barrett, he risks alienating his own base, who he also needs.  In other words, a Barrett pick would vastly increase the chances of Donnelly losing re-election, and, as such, of Republicans holding the Senate.

Why Trump Would Not Choose Barrett as His Nominee

There are three main reasons why Barrett may not be chosen as the nominee.  First, Barrett does not yet have the requisite level of experience for the Supreme Court.  Republicans are still wary from the nomination of Justice David Souter (an expected conservative who became a reliably liberal vote) and may seek stronger confirmation of Barrett’s jurisprudence before elevating her.  Second, Barrett risks fracturing the Republican caucus.  Republican Sen. Susan Collins has already indicated that she will not back any nominee who opposes Roe v. Wade or who does not commit to stare decisis.  Given Barrett’s writings on the subject, her confirmation may end up being much more difficult than those of other shortlisters.  Third, given the comparative paucity of female Supreme Court candidates on the right, Trump may choose to “save” Barrett for a seat vacated by a female Justice (e.g. Justice Ruth Bader Ginsburg).

Expected Lines of Attack

Barrett has already undergone one grueling confirmation process, receiving just three Democratic votes.  If she is nominated again, expect emphasis on Barrett’s view on Roe v. Wade, given her status as the likely fifth vote on rehearing the case.

Likelihood of Nomination

Had the nomination come out this week, I’d have expected Barrett to be the nominee.  However, a brutal series of attacks by social conservatives on expected frontrunner Brett Kavanaugh may have had the side-effect of weakening Barrett as well.  Nevertheless, given the political benefits of nominating Barrett,a Barrett nomination should be no surprise.

Meet the Shortlisters: Thomas Hardiman

Judge Thomas Hardiman was almost nominated to the Supreme Court last year to replace Justice Scalia.  Hardiman, who sits on the U.S. Court of Appeals for the Third Circuit, was feted for his “blue-collar credentials” but was ultimately overlooked for the more privileged Judge Neil Gorsuch.  This time around, Hardiman is once again a shortlister for a Supreme Court appointment.

Vital Statistics

Name: Thomas Michael Hardiman

Age: 52 (53 in five days)

Current Position: Judge on the U.S. Court of Appeals for the Third Circuit (since 2007)

Education: B.A. with Honors from the University of Notre Dame; J.D. from Georgetown University Law Center

Clerkships: None

Prior Experience: Private Practice in Washington D.C. & Pittsburgh 1989-2003; Judge on U.S. District Court for the Western District of Pennsylvania 2003-2007.

Jurisprudence

Hardiman is currently a judge on the U.S. Court of Appeals for the Third Circuit, where he has served since 2007 (and previously served from 2003 to 2007 on the U.S. District Court for the Western District of Pennsylvania).  On the Third Circuit, Hardiman has authored about 600 opinions, including around 30 that sparked a concurrence or dissent. Here are some key opinions that reflect Hardiman’s judicial philosophy on constitutional issues:

First Amendment

 

  • B.H. ex rel. Hawk v. Easton Area School District – The Easton Area School District banned students from wearing breast cancer awareness bracelets that stated “I ♥ Boobies.”  In response, students brought suit under the First Amendment and the Third Circuit struck down the ban on a 9-5 vote.  In dissent, Hardiman noted that, in his opinion, it was “objectively reasonable to interpret the bracelets, in the middle school context, as inappropriate sexual innuendo and double entendre.”
  • Kelly v. Borough of Carlisle – In a civil rights action, the plaintiff argued that he was unlawfully arrested for filming a police officer during a traffic stop.  Writing for the panel, Hardiman found that, if a First Amendment right to film a police officer existed, it was not clearly established, and that the arresting officer was protected by qualified immunity in the case.
  • Lodge No. 5 of Fraternal Order of Police v. Philadelphia – In a First Amendment challenge, Hardiman held that the City of Philadelphia could not bar police officers from making campaign contributions to the PAC of the police union.

Second Amendment

  • Drake v. Filko – Under New Jersey law, individuals seeking to carry handguns in public must demonstrate a “justifiable need to carry a handgun.”  A 2-1 vote of the Third Circuit upheld this requirement against a Second Amendment challenge.  In dissent, Hardiman argued that the law violated the Second Amendment, arguing that the Supreme Court’s decisions in DC v. Heller and McDonald v. Chicago extend the right to bear firearms beyond the home.

Right to Privacy

  • Florence v. Bd. of Chosen Freeholders – This case involved the challenge to the policy of strip searching all arrestees, regardless of how minor the offenses were.  Hardiman wrote for the panel in upholding the policy, holding that officials may strip-search all arrestees even without suspicion of carrying any contraband.  This ruling was upheld by the U.S. Supreme Court on a 5-4 vote.

LGBT Rights

  • Prowel v. Wise Business Forms, Inc. – This case involved a Title VII gender stereotyping claim brought by a homosexual employee who alleged severe and pervasive harassment from coworkers.  In response, the Defendant argued that the employee was attempting to claim discrimination based on sexual orientation, which is not cognizable under Title VII.  Hardiman ruled that the employee’s claim was based, not on discrimination based on sexual orientation, but rather on gender stereotypes, finding “no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not.”

Why Trump Could Choose Hardiman as His Nominee

Hardiman was almost the Supreme Court nominee last year because, in many ways, he was (and remains) a politically sound nominee.  He is from Pittsburgh in the Rust Belt, has a (relatively) less-connected background, and has the support of Judge Maryanne Trump Barry, the President’s sister.  Furthermore, Hardiman has a fairly conservative record on the federal bench, while also having two unanimous confirmations under his belt. Additionally, choosing Hardiman as the nominee may put pressure on Democratic Senator Bob Casey, who may choose to back his home-state nominee.

Why Trump Would Not Choose Hardiman as His Nominee

In his current nominee, Trump is looking for ivy league pedigrees and academic writings.  Hardiman doesn’t bring either to the table. Furthermore, Hardiman’s opinion in Prowel may alienate social conservatives.

Expected Lines of Attack

Hardiman’s judicial record can be mined for opposition.  Opponents may attack Hardiman, for example, for permitting the strip searching of all arrestees, even those charged with minor violations.  They may also raise his dissent in Easton and his opinion in Kelly to suggest that Hardiman would defer to government judgments on First Amendment restrictions.

Additionally, gun control advocates are likely to attack Hardiman as a Second Amendment absolutist, based on his dissent in Drake and his view that Heller and McDonald establish a right to bear firearms outside the home (a right not yet endorsed by the U.S. Supreme Court).

Likelihood of Being Nominated

Despite the ringing endorsement of Judge Barry, Hardiman was not chosen for the Supreme Court last term.  His chances are, if anything, slightly worse this time around. Supreme Court selections are ultimately about chemistry as much as they are about ideology.  In 2009, President Obama chose then 2nd Circuit Judge Sonia Sotomayor based largely on Sotomayor’s strong performance in her personal interview.  Given that Trump has already overlooked Hardiman once, his odds may not be as high as those of fresher faces.

Meet the Shortlisters: Amul Thapar

This is the second time that Judge Amul Roger Thapar has been considered by President Trump for a Supreme Court appointment.  Last year, Thapar was interviewed by Trump and White House Counsel Don McGahn for the seat opened by Justice Scalia’s death, despite only being a District Court judge at the time.[1]  Shortly after, Thapar was nominated to the U.S. Court of Appeals for the Sixth Circuit (Trump’s first lower court judicial nominee) and was confirmed on a party-line 52-44 vote.

Vital Statistics

Name: Amul Roger Thapar

Age: 49

Current Position: Judge on the U.S. Court of Appeals for the Sixth Circuit since 2017

Education: B.S. from Boston College; J.D. from U.C. Berkeley School of Law

Clerkships: Judge S. Arthur Spiegel on the U.S. District Court for the Southern District of Ohio; Judge Nathaniel Jones on the U.S. Court of Appeals for the Sixth Circuit

Prior Experience: Associate at Williams & Connolly; Assistant U.S. Attorney for the Southern District of Ohio; U.S. Attorney for the Eastern District of Kentucky; U.S. District Judge for the Eastern District of Kentucky

Jurisprudence

Thapar has served on the U.S. Court of Appeals for the Sixth Circuit since May 25, 2017.  In the past thirteen months on the Sixth Circuit, Thapar has authored approximately forty opinions.  These opinions are mostly unanimous, with only two sparking a dissent by a panel judge.[2]  In one case, Thapar reversed summary judgment against plaintiffs in a civil rights case for a warrantless entry, but held that a malicious prosecution claim was forfeited.[3]  In dissent, Judge Eric Clay noted:

“While it is true that Plaintiffs could have done a better job presenting their argument as to this claim, the brief is not so lacking in support and development as to consider the argument forfeited or waived. Indeed, Plaintiffs discussed the issue for four pages, throughout which they cited the standard for a malicious prosecution claim and identified sections of the record purportedly showing that elements of the claim are disputed. Plaintiffs also identified statements in the police report that they contend are false. Therefore, Plaintiffs have done enough in their brief for their argument not to be considered forfeited or waived.”[4]

In criminal and civil rights cases, Thapar has generally struck a conservative tone.  For example, in Fields v. Henry County, Tenn. (decided while he was sitting by designation), Thapar held that the Constitution did not prohibit the automatic detention of domestic violence arrestees, holding that there is no constitutional right to speedy bail.[5]  In another notable case, while sitting by designation on the Sixth Circuit, Thapar held that a defendant’s purchase of a one-month subscription to a child pornography website sixteen months earlier created probable cause for a search of his home.[6]  Thapar’s reasoning was lambasted in dissent by Judge Karen Nelson Moore, who suggested that Thapar had a “radical view of probable cause” that was “far more expansive than any circuit had taken to date.”[7]

Thapar has, on occasion, issued decisions that could be considered more “liberal.”  For example, Thapar held that police officers were protected by the First Amendment in exposing illegal wiretapping of private conversations conducted by law enforcement.[8]  In another case, Thapar affirmed the suppression of evidence where the searching officer did not abide by the conditions of the anticipatory warrant issued.[9]

Before his elevation, Thapar served on the U.S. District Court for the Eastern District of Kentucky for nine years.  During this time, Thapar maintained a fairly conservative record, particularly on criminal issues.[10]  In civil cases, Thapar also developed a reputation for denying motions for summary judgment in cases where factual disputes required cases to go to the jury.[11]

Notably, as a District Judge, Thapar struck down several canons of the Kentucky Code of Judicial Conduct, including restrictions on holding political fundraisers.[12]  The Sixth Circuit affirmed most of Thapar’s opinion but reversed his striking of the political fundraiser restriction.[13]

Why Trump Could Choose Thapar as His Nominee

By all accounts, Trump is looking for credentialed young conservatives for the Supreme Court.  Thapar meets all three criteria: he has strong academic credentials; is younger than every Supreme Court nominee since Clarence Thomas; and has a relatively conservative record on the bench.  Furthermore, Thapar is strongly supported by Senate Majority Leader Mitch McConnell, and would likely be confirmed smoothly, given his mentor’s strong reputation among the Senate Republican Caucus.  Finally, Thapar would make history as the first Indian American, Asian American, and South Asian American Supreme Court Justice, potentially blunting the effectiveness of attacks painting him as a conservative ideologue.

Why Trump Would Not Choose Thapar as His Nominee

Trump has apparently asked that his nominee have stellar academic credentials and a strong body of academic writings.[14]  In contrast with other shortlisters, Thapar did not attend Harvard or Yale, did not clerk on the U.S. Supreme Court, and has authored just three academic articles in his entire career.

Furthermore, Thapar’s jurisprudence, while conservative, also includes a fair share of liberal anomalies.  This may lead Trump to more “reliably” conservative nominees.

Expected Lines of Attack

If Thapar is nominated, expect ads to focus on his connection to McConnell, who remains significantly less popular than Trump.  Furthermore, Thapar may face criticism for his overturning of canons in Kentucky’s Code of Judicial Conduct, which may be paralleled to the Supreme Court’s ruling in Citizens United.

Likelihood of Being Nominated

Thapar would not be where he is today without the support of Senate Majority Leader Mitch McConnell (R-KY), who was Thapar’s sponsor as he became the first Indian American to serve as U.S. Attorney for a federal district, the first Indian American to serve as an Article III federal judge, and finally, the first Indian American judge on the Sixth Circuit.  As such, one can only assume that the powerful McConnell is (at least partially) responsible for Thapar’s consideration for the Supreme Court.

However, given his limited academic record and his (relatively) unpredictable jurisprudence, I’d predict that Thapar is the least likely of the five finalists to be nominated.


[1] Shane Goldmacher, Eliana Johnson, & Josh Gerstein, How Trump Got to Yes on Gorsuch, Politico, Jan. 31, 2017, https://www.politico.com/story/2017/01/trump-supreme-court-gorsuch-234474.  

[2] See Stein v. Atlas Indus., Inc., No. 17-3737, 2018 WL 1719097, at *6 (6th Cir. Apr. 9, 2018) (Batchelder, J., dissenting) (dissenting from majority opinion reversing dismissal of plaintiff’s ERISA claim); Brenay v. Schartow, 709 F. App’x 331, 337 (6th Cir. 2017) (Clay, J., dissenting) (stating that Plaintiffs did not waive their malicious prosecution claims).

[3] Brenay v. Schartow, 709 F. App’x 331.

[4] Id. at 338 (Clay, J., dissenting).

[5] See Fields v. Henry Cnty., Tenn., 701 F.3d 180, 185 (6th Cir. 2012).

[6] See United States v. Frechette, 583 F.3d 374, 376 (6th Cir. 2009).

[7] Id. at 381 (Moore, J., dissenting).

[8] Kiessel v. Oltersdorf, 459 Fed. Appx. 510 (6th Cir. 2012).

[9] United States v. Perkins, 887 F.3d 272 (6th Cir. 2018).

[10] See Harsh Voruganti, Judge Amul R. Thapar – Nominee to the U.S. Court of Appeals for the Sixth Circuit, The Vetting Room, Apr. 26, 2017, https://vettingroom.org/2017/04/26/judge-amul-r-thapar-nominee-to-the-u-s-court-of-appeals-for-the-sixth-circuit/.  

[11] See Voruganti, supra n. 2.

[12] Winter v. Wolnitzek, 56 F. Supp. 3d 884, 889 (E.D. Ky. 2014).

[13] Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016).

[14] Michelle Mark, Trump Has Narrowed His Supreme Court Nominee Shortlist to 5 Candiates – And There Are Reportedly 3 Qualities the Winner Must Embody, Business Insider, June 30, 2018, http://www.businessinsider.com/trump-supreme-court-nominee-shortlist-3-main-qualities-2018-6.