Be Smart About Trump’s Supreme Court Pick
(Bloomberg Opinion) -- I don’t claim to know who President Donald Trump will pick Monday night to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. But I do claim to know what we’ll be saying about it. Here, in alphabetical order, is what will soon be the conventional wisdom. Plus, what you should really think, where it differs.
Amy Coney Barrett: If Trump picks Barrett, the conventional view will be that he is playing to his evangelical base by selecting the most overtly religious nominee, one likely to vote to overturn Roe v. Wade, the landmark 1973 decision that legalized abortion. Democrats will say they have a shot at blocking her by holding onto conservative Senate Democrats and turning moderate, pro-choice Republicans Susan Collins and Lisa Murkowski to vote against Barrett. We will have to fasten our seatbelts for a fight over Catholicism generally, and over People of Praise, the tightly knit Christian group to which Barrett belongs.
The truth is that the fight over Barrett will in many ways just be a fight over Merrick Garland, President Barack Obama’s nominee to the Supreme Court whom the Republicans blocked in 2016 without even a hearing. In a pre-Garland world, Barrett would deserve to be confirmed without serious trouble. She’s deeply conservative, to be sure. But she’s also a truly brilliant lawyer, as I can attest from having clerked at the Supreme Court the same year she worked for Justice Antonin Scalia.
For what it’s worth, I don’t use the word brilliant lightly. There were just under 40 Supreme Court clerks in October Term 1998, none exactly a slouch. She was one of the two best lawyers of the 40 — and arguably the single best. Any Senate Democrat who tries to go toe to toe with Barrett over her legal abilities is going to lose. Badly. She has only eight months’ experience on the court of appeals after a career as a law professor. But she was legally prepared enough to go on the court 20 years ago.
On top of that, Barrett has seven children. She went to Rhodes College and the Notre Dame Law School, not Harvard or Yale. And oh yes, she’s a lovely, charming person. If she gets on the court, now or in the future, they will make a movie about her someday, just like Ruth Bader Ginsburg.
After the Garland denial, however, we’ve entered the land of pure nomination partisanship. If the Democrats can block Barrett, it’s hard to see why that would be any more unfair than Republicans blocking the eminently qualified Garland.
Thomas Hardiman: If Trump picks this complete Washington outsider, we’ll be saying that he listened to his sister Maryanne Trump Barry, the judge who first promoted Hardiman — and to Senate Majority Leader Mitch McConnell, who said he could get Hardiman confirmed. People will talk a lot about how the Catholic Hardiman, who went to Notre Dame for college and Georgetown for law school, volunteered for a legal organization called Ayuda and represented undocumented Latino immigrants pro bono. Some will speculate that this might make him soft on immigration issues. We’ll also hear about how he is very strongly pro-gun rights.
The reality is that Hardiman is the only true outsider candidate, someone who didn’t clerk for the Supreme Court (or any judge, actually), didn’t go to Ivy League schools, and never worked for the executive branch or a senator. He’ll be an outsider on the Supreme Court for the same reasons. He’s a wild card, and will make the Federalist Society, a conservative legal group, very nervous. His selection would show Trump is not listening to the people who have picked all his judges so far.
Brett Kavanaugh: Kavanaugh started as the most likely pick, because he’s conservative, smart, extremely well-qualified and a Federalist stalwart. If he’s picked, we’ll be saying that Trump just picks whoever George W. Bush would have picked — and that Kavanaugh is in the same vein as Trump’s first Supreme Court selection, Justice Neil Gorsuch.
Kavanaugh went to Yale and Yale. He teaches a course at Harvard, where the students (of all political stripes) love him. For years, clerking for him has been the royal road to a Supreme Court clerkship. He himself clerked for Kennedy, worked for independent counsel Ken Starr when he was investigating President Bill Clinton, and served as an aide to President George W. Bush.
The truth is that Kavanaugh is the opposite of Hardiman: He’s the insider’s insider. He’s a movement conservative but not a true ideologue. (I’m saying that today, when it’s too late for it to hurt him with the right.) He’ll give us lots of conservative decisions. But Kavanaugh knows John Roberts is a great doctrinal justice, and he has good political judgment. Kavanaugh and Justice Elena Kagan get along well without agreeing much. He’ll be ready on Day One — and his confirmation won’t mean the end of the republic.
Raymond Kethledge: A Kennedy clerk like Kavanaugh, Kethledge deviates from the insider model only nominally, because University of Michigan (where he went to college and law school) is a state school. But Michigan is one of the great world universities, and its law school faculty is one of the best (by some measures maybe the best) in the country. If he’s picked we’ll be saying that Kethledge was the safest candidate for Trump. He’s elite but not too elite, very conservative but not Barrett, and an insider but not a Bush administration alum like Kavanaugh. (He worked for Republican Senator Spencer Abraham of Michigan after law school and before the Supreme Court clerkship.)
The truth is that Kethledge won’t enrage any faction — or make anyone very happy. He would signal that Trump was trying to avoid trouble in the confirmation fight but didn’t want to risk offending the Federalists with Hardiman. Kethledge isn’t well known in elite circles. He’s a clear writer and might make a very good justice. But his selection really would be a sign that Trump feels surrounded by competing nomination pressures — and made the pick based on what others wanted and didn’t want, not based on his own gut.
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