President Donald Trump said Tuesday he will pick a "truly great" nominee for the Supreme Court next week.
According to CBS News, as of late December the Trump team had already shortened its short list to just five individuals, unprecedented for an administration that had not even entered office. This makes sense, since the Supreme Court is one of the issues that won him the election, with evangelicals holding their noses to vote for him and get a pro-life justice.
“In the next week or so, we should have an update on a nominee,” White House press secretary Sean Spicer said Monday.
The Trump team’s five top choices are four Bush-appointed federal appellate judges and one state supreme court justice: William Pryor from the Eleventh Circuit; Thomas Hardiman, from the Third; Steve Colloton, from the Eighth; Diane Sykes, on the Seventh; and Joan Larsen, on the Michigan Supreme Court.
This is a highly qualified list. The candidates have an average of 11.4 years on the bench (14 if you exclude Larsen, a rookie) and, as far as we know, none have ethical complaints or other strikes against them. Purely insofar as qualifications, Trump is right to boast that his is an excellent list of candidates.
Honestly, given Trump’s penchant for nominating individuals opposed to the departments they are set to head, this must be regarded as a relief. If the confirmation process were the way it used to be—about competence, not ideology, to paraphrase Michael Dukakis—each would be an easy yes.
But, of course, that model flickered out long ago, and was utterly extinguished in 2016, when the Senate refused even to consider a nominee, Judge Merrick Garland, whom everyone agreed was supremely qualified, ethically superlative, and, as best as anyone could really tell, politically moderate.
So now we are in a new reality. Already, Senator Charles Schumer has indicated that the Democrats will filibuster any ideologue Trump puts up, which seems eminently fair given what happened to Garland. And already, Senate Majority Leader Mitch McConnell has won the Hypocrite of the Year award, telling reporters that “American people simply will not tolerate” a delay in confirmation. Such as the delay he engineered for 10 months.
So, if there’s an endgame here, other than the nuclear option of eliminating the filibuster altogether, it will have to involve a consensus pick, someone in the mode of Anthony Kennedy or David Souter—a moderate Republican whose position on abortion (in many people’s minds, the only issue the Supreme Court faces) is unknown, but whose track record is reliably conservative without being extreme.
None of the five current candidates fit that bill.
1. William Pryor
As we reported back in August when his name was first floated, Judge William Pryor is a distinguished jurist with several extreme-right positions. Pryor has called Roe v. Wade “the worst abomination in the history of constitutional law”—worse, apparently, than the Dred Scott decision (upholding slavery), Plessy v. Ferguson (segregation), and Korematsu (Japanese internment camps). He defended this statement at his 2003 judicial confirmation hearings, as well as his statement that “I will never forget Jan. 22, 1973, the day seven members of our highest court ripped the Constitution and ripped out the life of millions of unborn children.”
But Roe is only one of Pryor’s least favorite cases. The other, surprisingly, is 1966’s Miranda v. Arizona, which required police to tell arrestees that they have the right to remain silent. In a 2000 speech to the Heritage Foundation, he called Roe and Miranda the two “worst examples of judicial activism.” That is a worrying and extreme position, both in terms of Miranda itself, and in terms of what it might mean for other privacy and criminal justice issues like stop and frisk, surveillance and national security, militarized policing, and mass incarceration.
Pryor also has a mixed record on race issues: opposing the Voting Right Act, upholding voter ID laws, and holding that a white employer calling a black employee “boy” is not evidence of racism. Pryor sided with the NAACP on race-based congressional redistricting and prosecuting the 1963 Birmingham church bombers. He has some progressive opinions too, siding with transgender people in a discrimination case, and against Alabama’s Constitution-defying Supreme Court Chief Justice Roy Moore.
In what was perhaps a dry run for a 2017 Supreme Court vote, Democrats filibustered Pryor’s nomination until Republicans threatened the “nuclear option” of ending the filibuster altogether. (In 2013, Democrats exercised the semi-nuclear option, allowing filibusters to be ended by a simple majority vote—except for Supreme Court nominations.) McConnell has not ruled out the nuclear option now.
Pryor is probably the most prominent of the candidates on the shortlist, but his would be the most confrontational appointment.
2. Diane Sykes
Along with Pryor, Judge Diane Sykes has been named by Trump as a possible Supreme Court pick.
Like the other candidates, Sykes has a solidly one-sided conservative track record. She has voted to limit corporate liability for product defects, to make it harder for employees to sue under the Americans with Disabilities Act, to affirm a criminal conviction even when one juror was later found not to be able to speak English, to immunize a prosecutor who fabricated evidence, to uphold Wisconsin’s Voter ID law, and to require public universities to subsidize religious organizations who discriminate against LGBT people.
All this despite having told one reporter in 2000 that “I will try very hard not to be a results-oriented jurist who figures out how he or she wants the case to come out and then makes the law fit that result. Rather, I’ll start at the beginning of the legal analysis and work outward from there.” Coincidentally, all of Sykes’s rulings in politically sensitive cases have landed on one side of the political divide: the right.
3. Thomas Hardiman
Like Pryor and Sykes, Judge Thomas Hardiman has a very narrow view of civil liberties. He affirmed a holding that there is no constitutional right to video record police officers. He wrote an opinion (affirmed by the Supreme Court) affirming the strip-searching of all arrestees in jail, even those there for minor traffic offenses. He would have allowed a Pennsylvania school district to bar students from wearing a bracelet saying “I ♥ Boobies” to raise awareness about breast cancer.
Still, compared with Pryor at least, Hardiman is a more conventional pick insofar as he hasn’t said outrageous things about hot-button social issues. Instead, progressives have had to read between the lines: Hardiman has spoken at several events hosted by the conservative Federalist Society, for example. Conservatives seem to love him.
In one high-profile case, he sided with the NFL over players who had not yet developed brain damage, but who wanted to be included in the NFL’s settlement in case they did later – but that case was about an actual football, not a political one.
Hardiman is thus a safer pick, if only because he has less of a record.
4. Steven Colloton
In contrast to Hardiman, Judge Steven Colloton actually has a judicial record on abortion-related cases. He affirmed a South Dakota law that required abortion clinics to tell patients that abortions affect an “unborn human being” and voted to strike down the Obamacare compromise with religious organizations on contraception. This is not an unusual pro-life position – not like Pryor’s, in other words – but it certainly is a clear one.
Colloton, a former law clerk to Chief Justice Rehnquist, has a consistent pro-business, anti-labor, anti-civil-rights record as a judge. As the liberal group People for the American Way reported, he reversed an $8.1 million award to a whistleblower who exposed corporate fraud and reversed a $19 million judgment in a class action against Tyson Foods for violating the Fair Labor Standards Act. Colloton also ruled that police may use police dogs to bite and hold suspects, voted against a group of Native Americans in a Voting Rights Act case, and held that public employees should not be able to claim that they were retaliated against for their political speech. Colloton also has an interesting resume, in that he worked for Independent Counsel Ken Starr during the Whitewater investigations.
In short, while not a firebrand like Bill Pryor, Colloton is not someone that any Democrat in the Senate could possibly support as part of a compromise or consensus process.
5. Joan Larsen
Finally, the one non-federal judge, and non-experienced candidate on the list, is Michigan Supreme Court justice Joan Larsen, appointed just last year. Because Larsen is so new, she doesn’t have the judicial voting record of the other candidates.
But she is not free from controversy: Larsen worked in the Bush 43’s Justice Department, authoring a memo limiting detainees’ rights to challenge their detention. Larsen has said that she was not in the loop on the most controversial memo from the period, authorizing the use of torture, and there is no evidence to contradict that claim. Still, in light of Trump’s rhetoric about bringing back torture and the role of the Supreme Court in protecting the rights of the most vulnerable, Larsen’s tenure at the Bush DOJ must be seen as a red flag, requiring, at the very least, clarification of where she stands on these issues.
Interestingly, early opposition to her candidacy has come from libertarians, with Damon Root in Reason articulately criticizing her support of the expansion of executive power—once again worrying in a Trump administration. Once again, the context was torture, and President Bush issuing a “signing statement” that said that, in his view, he did not have to follow the law he had just signed. Once again, in the context of a president who seems not to understand the rule of law—think of his claim that presidents can’t have conflicts of interest, or that military leaders would simply have to listen to him even if his orders were unconstitutional—this position is worrying.
Larsen might be the most natural pick to succeed the late Justice Scalia, since she not only clerked for him in 1994 but wrote an encomium to him shortly after his death. In it, Larsen praised Scalia’s “elegant and pointed pen” (the same pen that called the same-sex marriage ruling “argle-bargle”) and said that what she learned most from the justice was “that law came to the court as an is not an ought.” Larsen would thus be a poignant successor to Scalia, and probably an ideological one as well.
But Scalia wasn’t a consensus pick either. Back in 1986, when Scalia was confirmed to the Supreme Court, he, too, was a supremely qualified candidate with an impressive intellectual and judicial resume. That was then.
Now, post-Bork, post-Garland, post-comity, it’s impossible not to take ideology into account, because ideology is the only reason Judge Garland isn’t sitting on the Supreme Court bench. And with so much at stake over the next decade—far, far more than abortion—it would distort the process itself for the GOP’s unprecedented tactic to succeed. The only way to save the integrity of the confirmation process is, ironically, to obstruct it until a consensus candidate is put forward.
Had Senate Republicans even given Garland a vote, Democrats would be hard-pressed to filibuster any of these five candidates, though they would surely vote against any of them. Had Republicans done their constitutional duty in 2016, Democrats would have to do theirs in 2017.
But Mitch McConnell and Judiciary Committee Chair Charles Grassley threw out the rulebook last year. In the new reality they created, some kind of consensus candidate is the only way to move forward with integrity. None of these five judges is that kind of candidate.