Taking a Seat

Tonight, at 9:00 p.m. ET, President Donald Trump will unveil his pick for the United States Supreme Court. This opportunity is, as Trump would say, “huge” — the highest court in the land will shift for a generation.

With Justice Anthony Kennedy retiring, a man long thought to be a swing vote on a polarized court will be replaced by someone who is less likely to weigh the judicial options without influence. Before we get into candidates, let’s explore the role of a United States Supreme Court Justice.

Article III, Section I of the U.S. Constitution states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Congress, however, can decide how to operate this.

This means that those in the legislative branch (or namely, the Senate) can help select the Justices through the nomination process and can even set rules for the number of Justices allowed to serve. This first was exercised with the Judiciary Act of 1789 — choosing to create a Court with 6 justices.

After much change and negotiation following the Civil War, the Court was set at 9 justices, thereby hoping to prevent a tie in a ruling. With 9 justices, the United States Supreme Court currently has a single Chief Justice and 8 associate justices on the bench.

The current roster?

• Chief Justice John Roberts (nominated by President George W. Bush, took seat in 2005)
• Associate Justice Anthony Kennedy (nominated by President Ronald Reagan, took seat in 1988)*
• Associate Justice Clarence Thomas (nominated by President George H.W. Bush, took seat in 1991)
• Associate Justice Ruth Bader Ginsberg (nominated by President Bill Clinton, took seat in 1993)
• Associate Justice Stephen Breyer (nominated by President Bill Clinton, took seat in 1994)
• Associate Justice Samuel Alito, Jr. (nominated by President George W. Bush, took seat in 2006)
• Associate Justice Sonia Sotomayor (nominated by President Barack Obama, took seat in 2009)
• Associate Justice Elena Kagan (nominated by President Barack Obama, took seat in 2010)
• Associate Justice Neil Gorsuch (nominated by President Donald Trump, took seat in 2017)

Article III, Section II of the Constitution establishes the jurisdiction of the Supreme Court. The Court has original jurisdiction over cases like suits between two or more states and/or cases involving ambassadors and other public ministers. Moreover, the Court has appellate jurisdiction on almost any other case that involves a point of constitutional and/or federal law.

So…who will take Justice Kennedy’s seat and fulfill that role? Let’s look at the final four candidates:

Amy Coney Barrett, 7th U.S. Circuit Court of Appeals

Age: 46

Hometown: New Orleans, Louisiana

Education: BA, Rhodes College, 1994 (magna cum laude); JD, University of Notre Dame, 1997 (summa cum laude)

Personal Life: Barrett is a mother to 7 (5 biological, 2 adopted) children and is married to Jesse Barrett, Assistant United States Attorney for the Northern District of Indiana. A practicing Roman Catholic, Barrett believes strongly in her faith and has been a part of the controversial religious group, People of Praise. She was also a member of the Federalist Society from 2005–2006 and 2014–2017.

Career: Clerk, Judge Laurence Silberman of the United States Court of Appeals for the District of Columbia Circuit; Clerk to Associate Justice Antonin Scalia of the Supreme Court of the United States; Attorney at Law, Miller, Cassidy, Larroca & Lewin in Washington, D.C.; Law and Economics Fellow, George Washington University; Professor, University of Notre Dame Law School.

Record: Barrett is a potentially divisive nominee due to her beliefs against abortion and for her Catholic faith. She co-authored a paper saying Catholic judges, if faithful to church teachings, are “morally precluded” from enforcing the death penalty. However, she also said it was not acceptable for judges to “follow their personal convictions” when ruling on cases. More recently, she’s written that abiding by precedent is “not a hard-and-fast rule” in the Supreme Court’s constitutional cases.

Overall: Barrett will face scrutiny for her views on Roe v. Wade and the Affordable Care Act, as she signed a letter opposing an ACA contraception mandate and the Obama administration’s accommodation for religious institutions. She will also face questions about her academic writings, including at least one that focused on precedent. While many have said Barrett — another woman — should be the pick to diffuse a potential Roe v. Wade fight, her Catholic background and strong support of pro-life causes could still result in such a fight. This, coupled to the lack of an extensive record, suggests Trump may look another way.

Thomas Hardiman, 35th U.S. Circuit Court of Appeals

Age: 53

Hometown: Winchester, Massachusetts

Education: BA, University of Notre Dame, 1987 (with honors); JD, Georgetown University Law Center, 1990 (with honors)

Personal Life: As a college student, Hardiman participated in an exchange program in Mexico, and later volunteered with the Ayuda immigration legal aid office in Washington, D.C. to represent immigrants. Hardiman is the first member of his family to graduate from college and drove a taxicab to pay for his law degree. Like Barrett, Hardiman would be the only U.S. Supreme Court Justice not to hold an Ivy League degree. He is the father of three children and married into a family of prominent Democrats.

Career: Associate, Skadden, Arps, Slate, Meagher & Flom; Associate, Titus & McConomy; Partner, Titus & McConomy; Partner, Reed Smith; Judge, United States District Court for the Western District of Pennsylvania; Judge, United States Court of Appeals for the Third Circuit. Hardiman was a finalist during Trump’s search for a Supreme Court justice last year.

Record: Hardiman has a conservative judicial record. He voted to strike down a New Jersey law requiring residents to show a “justifiable need” to carry a handgun in public, saying the measure “contravenes the Second Amendment.” He also tossed out the conviction of an anti-abortion protester “because it was obtained in violation of his First Amendment right to free speech.” Hardiman did pro bono work on behalf of immigrants and once told Senators that one case involving an immigrant from El Salvador seeking political asylum was “one of the most important cases I have ever handled.”

Overall: Hardiman looks to be one of the favorites to land the seat. Hardiman is close with Trump and is popular among gun-rights activists. He was the runner-up to Gorsuch and is highly recommended by the president’s sister, Maryanne Trump Barry, who serves on the 3rd Circuit as well. Thanks to Trump’s love of loyalty, this seems like a logical pick. Furthermore, his ties with Trump’s sister and the Trump administration’s pattern of giving positions to friends and family makes Hardiman a likely selection.

Brett Kavanaugh, U.S. Court of Appeals for the District of Columbia Circuit

Age: 53

Hometown: Washington, District of Columbia

Education: BA, Yale University, 1987 (cum laude); JD, Yale University, 1990

Personal Life: Kavanaugh is married to Ashley Estes, former personal secretary to former President George W. Bush. They have 2 daughters.

Career: Clerk, Judge Walter Stapleton of the United States Court of Appeals for the Third Circuit and Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit; Fellow, Ken Starr, Solicitor General of the United States; Clerk, Supreme Court Justice Anthony Kennedy; Associate Counsel, Office of Independent Counsel, Ken Starr; Partner, Kirkland & Ellis; Senior Associate Counsel and Associate Counsel to the President, The White House, President George W. Bush; Assistant to the President and White House Staff Secretary, The White House, President George W. Bush; Judge, United States Court of Appeals for the District of Columbia Circuit

Record: Kavanaugh has, arguably, the most extensive record out of the final four nominees. He authored opinions in more than 280 cases as of the end of 2017. As principal author of the Starr Report, he argued for the impeachment of Former President Bill Clinton. He dissented in a case that paved the way for an immigrant teenager to have an abortion. Kavanaugh said the majority ruled “based on a constitutional principle as novel as it is wrong: a new right for unlawful minors in U.S. government detention to obtain immediate abortion on demand, thereby barring any government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision.” He also dissented in Heller v. District of Columbia, challenging D.C.’s ban on semi-automatic rifles and required registration of all firearms. Kavanaugh said he believed the measure was unconstitutional. Kavanaugh also ruled the Consumer Financial Protection Bureau’s structure was unconstitutional. He faces criticism for two rulings on the ACA, especially from social conservatives, who said his opinions “upheld Obamcacare.” This point was challenged as well. Kavanaugh wrote in a dissent that the Anti-Injunction Act from 1867 limited the Court’s jurisdiction. In the second case from 2015, Kavanaugh dissented from the denial of rehearing en banc, writing that the ACA complied with the Constitution’s Origination Clause, “but not for the reason articulated” by the D.C. Circuit’s panel.

Overall: Kavanaugh, if nominated, would be questioned on his work with Kenneth Starr during President Bill Clinton’s administration. Judge Kavanaugh also would be cornered on a piece he authored in the Minnesota Law Review calling Congress to allow for civil suits and criminal investigations involving the president to be deferred while the president is in office. This, coupled with the admiration he received when re-examining the controversial case of Vince Foster, puts Kavanaugh squarely in the conservative camp — farther to the political right than Justice Gorsuch. He’d be a beloved pick, and one who is innately familiar with the work of Justice Anthony Kennedy as his former clerk.

Raymond Kethledge, 6th U.S. Circuit Court of Appeals

Age: 51

Hometown: Summit, New Jersey

Education: BA, University of Michigan, 1989; JD, University of Michigan, 1993 (magna cum laude)

Personal Life: Married to Jessica Kethledge who worked at the Red Cross, Raymond is the father of 2 children. Like Barrett and Hardiman, Kethledge would also diversify the court and hold a non-Ivy degree. He is an avid hunter, spending much of his free time in Michigan. Kethledge was elected to the American Law Institute in 2013. He serves as an adviser.

Career: Clerk, Judge Ralph B. Guy Jr., Sixth Circuit; Judiciary Counsel, Senator Spencer Abraham; Clerk, Supreme Court of the United States Justice Anthony Kennedy; Partner, Honigman, Miller, Schwartz & Cohn; In-House Counsel, Ford Motor Company; Partner, Feeney, Kellett, Wienner & Bush; Co-founder, Bush, Seyferth & Paige; Judge, United States Court of Appeals for the Sixth Circuit; Professor; University of Michigan Law School

Record: Many know Kethledge as “Gorsuch 2.0,” in part because of his judicial philosophy, but also because he, like Gorsuch, is an outdoorsman. Kethledge became noticed due to a 2016 ruling in a case involving a Tea Party group that said it was improperly targeted by the Internal Revenue Service because of its political views. Kethledge’s panel ruled in favor of the group, and, in writing the majority opinion, he criticized the IRS. He also upheld a Michigan county’s practice of opening meetings with prayer. Kethledge criticized deference to executive branch agencies under the Chevron doctrine which says that courts should defer to executive branch agencies’ “reasonable” interpretation of a statute if it is ambiguous. Kethledge believes the Chevron deference “has created a sense of entitlement among executive agencies.” He was also endorsed for Justice Kennedy’s seat by conservative radio host Hugh Hewitt who said,“Kethledge has been faithful for more than a decade to the originalist approach.” In Turner v. United States, 885 F.3d 949, 955, Kethledge joined a concurring opinion that argued “faithful adherence to the Constitution and its Amendments requires us to examine their terms as they were commonly understood when the text was adopted and ratified.” In Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 837 F.3d 678, 710, Kethledge joined a concurring opinion that quoted District of Columbia v. Heller, declaring that “[w]hat determines the scope of the right to bear arms are the ‘historical justifications’ that gave birth to it.”

Overall: Kethledge’s originalism and comparisons to Gorsuch will earn him many friends on the right while the left will undoubtedly challenge such a strict interpretation of the law. His experience as a clerk for Justice Kennedy places him on the board, just like Kavanaugh, but it’s his ability to hold steadfast that will earn him the points. Kethledge is someone Scalia would be proud to know. That said, Trump has never been one to take the Constitution (or laws, for that matter) as written, so I expect to see the president go a different way here.

We’ll have to tune in around primetime to see where this president wants the court to lead us for the foreseeable future. My bet? Brett Kavanaugh. Hardiman comes up just a bit short with his past leniency on immigrants. Yet, Hardiman could be selected as an “appeasement” pick to ease the tension of a blood-red selection on the Senate Democrats.

UPDATE: Trump’s meeting on Monday reportedly focused on two candidates: Thomas Hardiman and Brett Kavanaugh.