President Donald Trump is expected to announce his nominee to replace retiring Supreme Court Justice Anthony Kennedy at 8 p.m. Monday night.
Although a moderate conservative, Kennedy has long been considered the swing vote on the bench on devisive issues like abortion and LGBTQ rights. The president’s nominee, if confirmed, will likely solidify a five-seat conservative majority on the nine-member court.
So who’s on the president’s shortlist of nominees?
Morning Shift takes a look at what you need to know about four of the president’s top candidates with the help of David Lat, editor-at-large for the legal news site Above The Law.
Judge Thomas Hardiman, 53
David Lat: Judge Hardiman is a judge for the 3rd Circuit based out of Pittsburgh and I think there are several things the president likes about him. First, he is an experienced judge with a great resume. Second, he has solid conservative credentials, as you can see from his rulings over the years. Third, he is a longtime colleague and friend of Donald Trump’s older sister, Maryanne Trump Barry, who has been a judge on the 3rd Circuit for quite some time.
And fourth and finally, Judge Hardiman has a very persuasive personal story. He grew up outside of Boston. He drove a cab to pay his way through school. He has a story that could resonate with many voters in Pennsylvania and other swing states that are key to Donald Trump’s political success.
Tony Sarabia: Does he have anything in his record that would either be too controversial for Democrats or perhaps that shows he’s not a strong enough pick for Republicans?
Lat: I don’t think there is actually too much in Judge Hardiman’s record that you can criticize from the perspective of the Democrats. He was confirmed to the 3rd Circuit unanimously by a vote of around 95-0. I think it will be hard for Democrats to oppose him, and I think this is why [Senate Majority Leader] Mitch McConnell, in a recent call with President Trump, apparently said that Hardiman was one of the most easy to confirm.
I think conservatives might be a little concerned with Hardiman because they might feel he’s not as tried and true as some of the other finalists. He also has, on occasion, ruled in favor of immigrants and he also, before he became a judge, did some pro-bono work on behalf of immigrants, which really should not be a problem but there are some conservatives who are very anti-immigration who somehow see this as a problem.
Judge Brett Kavanaugh, 53
Lat: Judge Kavanaugh is in many ways the blue-chip pick. He is a leading figure in the Republican legal establishment. He clerked for Justice Kennedy, he worked in the [George W.] Bush White House, and he’s been a judge on the D.C. Circuit, which is the second-most important and influential court after the Supreme Court, for about a dozen years. So he has a very strong track record of smart and conservative jurisprudence. He is also a graduate of Yale and Yale Law School, so he has that Ivy League pedigree that President Trump is said to favor.
Sarabia: What about his connection to President George W. Bush? As we all know, there’s not a lot of love between the Bush family and President Trump. Does that play at all into this you think?
Lat: Brett Kavanaugh’s connection to the Bush administration might actually be one of the biggest obstacles to his candidacy. He served as staff secretary in the Bush White House, which is a rather high-ranking position. He essentially controlled the paper flow into the Oval Office. There are many documents from Bush White House years that would be connected to Judge Kavanaugh that would have to be produced if he’s the nominee. And Trump, as we know, has some distrust of so-called “Bushies.” So do members of his political base.
Judge Raymond Kethledge, 51
Lat: Judge Kethledge I pegged early on as a very strong contender for his Supreme Court seat. He was nominated by President George W. Bush to the 6th Circuit. He’s based out of Michigan. And he has also a very strong conservative track record. He’s a very talented writer. He writes his own opinions, which is unlike many other judges who rely on law clerks to draft their opinions. He’s written a book on leadership called Lead Yourself First. He’s in many ways a very appealing candidate.
Judge Amy Coney Barrett, 46
Lat: Judge Amy Coney Barrett has been a judge on the 7th Circuit for about eight months. Before that she was a law professor at Notre Dame. She is conservative and she is Catholic, and her religion became an issue during her 7th Circuit confirmation hearings when Sen. Dianne Feinstein of California said something to Barrett like “the dogma” — meaning Catholic teaching and faith — “lives loudly within you.” Sen. Feinstein meant this as a concern. And this remark by the senator was seized on by conservatives as evidence of anti-Catholic and anti-religious bias by the Democrats. This made Judge Barrett a hero of the right and many believe that she would be a strong critic of Roe v. Wade, which she has written about in her capacity as a law professor. So in many ways she would be a very controversial pick, but beloved by the president’s base.
Sarabia: But at the same time she has said that Roe v. Wade is in fact settled law. So does that give concern to the right?
Lat: Judge Barrett has stated that Roe is settled law, but she has said that in the context of being a circuit judge, a lower court judge below the tier of the Supreme Court. And she has said that she would apply the precedents of the Supreme Court. The Supreme Court has the privilege of essentially revisiting or even overturning its own precedents. So it is quite possible that Judge Barrett could vote to overturn Roe v. Wade as a Supreme Court justice, even though now in her current role she is obligated to respect it as settled law.
This interview has been edited for clarity and brevity. Click the “play” button to listen to the entire conversation.