With Wednesday’s announcement that Supreme Court Justice Anthony Kennedy will be retiring, President Donald Trump has the opportunity to appoint the second justice of his presidency. His choice will likely shift the court further to the right—and for decades to come. As the court’s frequent swing voter, Kennedy sided with the court’s liberals more often than any of his conservative colleagues. That’s not likely to be true of his replacement. In November, Trump released his short list of 25 potential Supreme Court nominees, an updated version of the list he had produced during the presidential campaign. They’re a very conservative bunch.
Here are some of the likeliest candidates for the next Supreme Court justice:
Brett Kavanaugh (age 53), DC Circuit Court of Appeals: Perhaps the leading contender to replace Kennedy is Kavanaugh, a former Kennedy clerk and a current judge on the DC Circuit, the stepping stone for three sitting Supreme Court justices. Appointed by President George W. Bush, Kavanaugh earned his spot on the DC Circuit after working for Ken Starr investigating President Bill Clinton’s relationship with intern Monica Lewinsky and preparing an impeachment case against Clinton. Democrats fiercely opposed his nomination to the DC Circuit, in part because he was viewed as a partisan hack—Sen. Dick Durbin (D-Ill.) called him the “Forrest Gump of Republican politics,” because of his habit of being involved in every political controversy in the news. But Kavanaugh also faced opposition because he had never tried a case and had very little experience with criminal law. Durbin observed during his confirmation hearing that Kavanaugh was nominated with “less legal experience than virtually any Republican or Democratic nominee in more than 30 years. Of the 54 judges appointed to this court in 111 years, only one—Kenneth Starr—had less legal experience. That is a fact.”
The American Bar Association, which initially rated Kavanaugh “well qualified,” downgraded that assessment to “qualified” after interviewing people who’d worked with him. In its report, the ABA noted, “One judge who witnessed the nominee’s oral presentation in court commented that the nominee was ‘less than adequate’ before the court, had been ‘sanctimonious,’ and demonstrated ‘experience on the level of an associate.’” His nomination stalled for three years before he was finally confirmed in 2006. In his 12 years on the DC Circuit, Kavanaugh made a name for himself as a staunch opponent of the Obama administration’s environmental agenda. His dissents in cases involving the Environmental Protection Agency often seemed to sway the Supreme Court. At 53, Kavanaugh is, like Gorsuch, young enough to influence the court for many decades to come.
Steven Colloton (age 55), 8th Circuit Court of Appeals: Colloton was on a panel of judges that struck down a provision of the Affordable Care Act. The Obama administration had provided an exemption from the bill’s contraceptive mandate for religious organizations. But Colloton and his colleagues ruled that even the process of opting out of the mandate was a burden on the groups’ religious freedom. (Every other federal court to consider the issue found the regulations acceptable.) That decision enabled the Supreme Court to take up the issue. Like Kavanaugh, Colloton worked for Starr on the Whitewater/Monica Lewinsky investigation.
Raymond Gruender (age 54), 8th Circuit Court of Appeals: A colleague of Colloton’s, Gruender is well known for having written the circuit court’s opinion in a 2006 case concluding that a company insurance plan could exclude birth control pills from coverage and that such a denial would not violate the Pregnancy Discrimination Act. The opinion took aim at a Clinton-era finding that the act entitled women to contraceptive coverage, and it was used extensively by anti-abortion advocates to attack the contraceptive mandate in the Affordable Care Act.
William Pryor Jr. (age 56), 11th Circuit Court of Appeals: If Trump really wanted to make liberals apoplectic, he could choose Pryor to replace Kennedy. Pryor previously succeeded Attorney General Jeff Sessions as Alabama’s attorney general, and he has been an outspoken conservative on the appellate court.
Pryor was such a toxic nominee when President George W. Bush chose him for a federal judgeship in 2003 that Senate Democrats initially filibustered him. Pryor has referred to Roe v. Wade, the 1973 Supreme Court decision making abortion legal, as the “worst abomination of constitutional law in our history” creating “a constitutional right to murder an unborn child.” As Alabama’s attorney general, he filed a brief to the Supreme Court supporting Texas’s anti-gay sodomy law—he was the only state attorney general to do so—and defended a ban on the sale of sex toys in the state, writing that “the commerce in sexual stimulation and auto-eroticism, for its own sake, unrelated to marriage, procreation, or familial relations is an evil, an obscenity…detrimental to the health and morality of the state.” In 2014, he was on a panel of judges that barred the Obama administration from enforcing the contraceptive mandate against EWTN, a Catholic TV network. While on the court, he voted to continue a ban on volunteers feeding homeless people near Orlando’s city hall; upheld a restrictive Georgia voter ID law; and refused to block the use of opening prayers at government meetings in Cobb County, Georgia.
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