May 19, 2016

What to Make of Trump’s Justice League

Evidence that he is aware of the need to please his right flank.

The 2016 election is a four- or maybe eight-year proposition. The Supreme Court, on the other hand, is a generational one. And that makes the stakes quite high in choosing a president, because the next one will pick as many as four new justices. No pressure.

We know Hillary Clinton will nominate only leftists to the bench, just as Barack Obama has. We also know that the Republican Senate is gambling by not confirming Merrick Garland, because if the GOP loses the chamber and Garland is not yet confirmed, Obama or Clinton may yank his nomination in favor of someone even further left.

Which brings us to Donald Trump. The type of judges Trump would nominate has been the subject of question and speculation. Until now. On Wednesday, he took the unusual step of releasing a list of 11 solid conservatives he would consider nominating. It may go a long way toward uniting the party behind its presumptive nominee.

The list is as follows:

Third Circuit Court of Appeals Judge Thomas Hardiman
Sixth Circuit Court of Appeals Judge Raymond Kethledge
Seventh Circuit Court of Appeals Judge Diane Sykes
Eighth Circuit Court of Appeals Judge Steven Colloton
Eighth Circuit Court of Appeals Judge Raymond Gruender
Eleventh Circuit Court of Appeals William H. Pryor
Colorado Supreme Court Justice Allison Eid
Michigan Supreme Court Associate Justice Joan Larsen
Minnesota Supreme Court Associate Justice David Stras
Texas Supreme Court Justice Don Willett
Utah Supreme Court Associate Justice Thomas Lee (brother of Sen. Mike Lee)

Legal scholar John Yoo writes, “Everyone on the list is an outstanding legal conservative. All are young, smart, and committed. They would excel in any comparison with anyone whom Hillary Clinton would appoint to the Supreme Court. Several of the possibilities, such as Tom Lee of Utah, Allison Eid of Colorado, and David Stras of Minnesota, are former law clerks of Justice Clarence Thomas, while others, such as Steve Colloton of Iowa and Joan Larsen of Michigan, clerked for Justice Antonin Scalia. They are joined by other well-known judicial conservatives, such as Diane Sykes, Don Willet, Ray Kethledge, and Bill Pryor.”

Most of these picks are from outside the Beltway or East Coast elite. Almost half are from state courts, which could help with the balance of power between state and federal governments. Lee and Sykes in particular are likely part of an effort to win over some of the #NeverTrump figures who follow Sen. Lee or Sykes’ ex-husband Charlie, a prominent Wisconsin talk-radio host. The list also closely resembles one made by The Heritage Foundation. All of this is evidence that Trump is aware of the need to please his right flank.

Notably, Sixth Circuit Judge Jeffrey Sutton and DC Circuit Judge Brett Kavanaugh were two prominent conservatives excluded from the list, perhaps because both rejected challenges to ObamaCare. If that’s the case, it’s encouraging. Some are making hay about the absence of Ted Cruz, too, but that’s a stretch. Cruz has repeatedly said he’s not interested, and Trump gains little by naming him.

Previous Republican picks have not always panned out. Ronald Reagan chose Anthony Kennedy (albeit after Senate Democrats outrageously smeared and defeated Robert Bork), George H.W. Bush picked David Souter, and George W. Bush gave us John Roberts, who saved ObamaCare twice. Democrat picks, on the other hand, never end up being more conservative, so we don’t need a list from Hillary.

If a President Trump were to nominate one good justice and three bad ones, to analogize with baseball, batting .250 is better than batting .000. But this also isn’t baseball.

Can Trump win in November? Indeed he can. It will be a difficult road, but we shouldn’t underestimate his support — especially against an incredibly weak Clinton. As far as this list of judicial picks, we should remember Trump’s flip-flopping record, general disinterest in the judiciary, and total disregard for the Constitution, and take this list with a truckload of salt. Still, if conservatives are convinced there’s even a slight chance Trump is playing it straight, this effort will only help him in November.


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