After President Trump picked Neal Gorsuch as his first Supreme Court Justice appointment
there was much speculation over who would be next should there be another vacancy during
his term. That moment has arrived and Mr. Trump announced he has narrowed down the picks
to three candidates, and the choice would be announced on July 9 as the replacement for
retiring Justice Kennedy:
Amy Coney Barrett of Indiana, U.S. Court of Appeals for the Seventh Circuit
Brett Kavanaugh of Maryland, U.S. Court of Appeals for the District of Columbia Circuit
Raymond Kethledge of Michigan, U.S. Court of Appeals for the Sixth Circuit
There are a few notables on this list. Some have commented they believe the most qualified on
this list to take a spot on the Supreme Court is Brett Kavanaugh, an Ivy League graduate. His
list of judicial accomplishments is long and he has an excellent reputation. So does Raymond
Kethledge, and some in positions of power appreciate he has tried to keep politics out of key
decisions related to government agencies.
Evangelicals are rooting for Amy Coney Barrett of Indiana to be selected because she has
indicated a willingness to challenge the historic Roe v. Wade Supreme Court decision that
granted women a fundamental right to reproductive choice, should a relevant case on the topic
be presented.
So President Trump has a unique dilemma here. Does he wish to ensure his chances at a
second term by picking a justice that is most easy to get through the confirmation process or a
justice that is most likely to satisfy his voting base due to their ideology. Both sides of the
political aisle are preparing for this pick because it will impact the number of votes on the side of
Conservative Justices to 5 and the number of votes of Liberal Justices to 4 with two more
moderate justices acting as the swing votes. The court is now center right.
Now let’s consider a few arguments to recommend or reconsider each of the finalists:
A few reasons some favor Judge Kethledge is because of his character and consistent
“originalist” credentials on key decisions. He has worked over a decade as an appeals judge.
But while Barrett is a short-timer and Kavanaugh has some potential strikes against him on his
record, Kethledge’s decade on the court might be his biggest plus. In one notable case Judge
Kethledge implored the Internal Revenue System to avoid acting in a political manner against its
foes. Conservative radio host Hugh Hewitt wrote in The Washington Post that Kethledge, 51,
has clear “originalist” credentials, most similar to his prior pick, Judge Gorsuch.
Mr. Kethledge decided that the term “family” could be applied to a Medicare beneficiary’s live in
partner, securing the family much-needed health care benefits that had been denied them by
insurance administrators.
A few points that argue against his selection: Trump has stated he prefers to select a Ivy
League graduate for this prestigious post. And he might be the least controversial pick on this
list, which could be a strike against him for a President who likes to surprise the public.
The second of Trump’s short list appeals to religious conservatives who wish for the Supreme
Court to decide key issues leaning towards their ideology. In an interview Judge Barrett stated,
“Roe V. Wade is established law for the past 40 years and has withstood all courts of appeal. I
do not expect this decision to be overturned, but that abortion issues will be decided in terms of
should funding be Federal or state, issues such as this.”
Judge Barrett is only 46, she’s the youngest on this list, which would make Trump’s conservative
allies happy about her potential longevity on the court’s right flank. However, she is also the
most relatively inexperienced, having only served on the appeals court for less than a year. This
casts uncertainty in how she may rule on certain decisions.
Judge Kavanaugh might be Trump’s most conventional pick. Kavanaugh has two Yale degrees,
experience in both the George W. Bush administration and the Justice Department, and a
12-year history of decisions on a federal appeals court. He is reportedly a favorite of White
House counsel Donald McGahn, who is running the selection and confirmation process for the
White House.
Also in his favor, Judge Kavanaugh wrote in 2009 that presidents should be protected from
investigation and lawsuits while in office — a view that could endear him to a president who
faces multiple legal issues of his own.
CON: That long history of decisions could be 53-year-old Kavanaugh’s biggest liability. While he
has the stamp of approval from the Federalist Society, conservatives have expressed concerns
about a few of those decisions being a little too lenient, including one on the Affordable Care
Act.
If Senator Rand Paul (R-Ky.) is reportedly cautioning against choosing Kavanaugh. If he holds
to his threat not to confirm, the nomination could be at risk in a party-line 51-49 Senate vote. If
you have questions about appealing one of your cases to a higher court, consider contacting an attorney, like a skilled lawyer, today.