With justice Anthony Kennedy’s retirement set to take effect on July 31, President Trump plans to replace him with a candidate from a list he first presented during his 2016 presidential campaign.
The list of candidates was created with input from the Federalist Society and the Heritage Foundation, two Republican-oriented organizations that serve to guarantee the appropriate political pedigree of those on the list.
The 25-person list represents a who’s who of right-wing judicial activists, essentially guaranteeing a majority on the court who will be in a position to outlaw abortion, curb regulations on corporations and sanction dictatorial forms of government.
Below is a review of the 25 potential nominees, listing their state of residence, most recent judicial post and a brief political biography.
Amy Coney Barrett of Indiana, U.S. Court of Appeals for the Seventh Circuit. Barrett is a former Notre Dame Law professor and recent Trump nominee to the appeals court, confirmed by the Senate in October 2017. A former law clerk for the arch-reactionary Supreme Court Justice Antonin Scalia, Barrett has written that her Catholic beliefs cannot be set aside when she sits on the bench. She views the birth control requirement in the Affordable Care Act as violative of religious liberty and questions the Roe v. Wade decision, which legalized abortion. Barrett was confirmed in the Senate to her current appointment with the support of three Democrats: Joe Manchin, Joe Donnelly, and Tim Kaine.
Britt Grant of Georgia, Supreme Court of Georgia. Like virtually everyone on the list, Grant is a member of the right-wing Federalist Society, which advocates the so-called “originalist” or “textualist” view of constitutional jurisprudence. She worked in the George W. Bush White House on the Domestic Policy Council and served as Georgia’s solicitor general from 2015 to 2017. While working as the counsel for legal policy in the Office of the Georgia Attorney General, Grant contributed to an amicus brief in the infamous case Shelby County v. Holder urging that the enforcement provisions of the Voting Rights Act be “edited and reviewed.”
Brett Kavanaugh of Maryland, U.S. Court of Appeals for the District of Columbia Circuit. A trusted Republican partisan, Kavanaugh is a protégé of Kenneth Starr, whom he served both in the solicitor general’s office under George H.W. Bush and then as independent counsel during the Whitewater investigation into the Clinton family’s real estate dealings. He later wrote the Starr Report detailing Bill Clinton’s affair with Monica Lewinsky, leading to impeachment proceedings. Kavanaugh also represented Cuban national Elian Gonzalez pro bono during the political stunt to keep the child from returning to Cuba. He represented president George W. Bush in the Bush v. Gore lawsuit to prevent a vote recount in Florida.
Joan Larsen of Michigan, U.S. Court of Appeals for the Sixth Circuit. Another veteran of the George W. Bush White House, Larsen wrote one of the legal memos on indefinite detention in the early days of the war on terror, which has not been made public.
She served as a deputy assistant U.S. Attorney General from 2002 to 2003, the period during which the Office of Legal Counsel, led by John Yoo, drafted legal rationales for water boarding, stress positions and sleep deprivation (everything except major organ damage). Larsen denies involvement in these memos, which would constitute a war crime under the Nuremburg standard. Like others on the list, she clerked for Antonin Scalia and wrote a eulogy for him published in the New York Times.
Mike Lee of Utah, United States Senator. Lee stands out for something of a libertarian streak, opposing military action not authorized by Congress as well as the National Security Agency’s warrantless wiretapping. On other matters he largely parrots the current Supreme Court’s right wing.
William Pryor of Alabama, U.S. Court of Appeals for the Eleventh Circuit. Trump actually mentioned Pryor in a GOP primary debate in February 2016, as an example of the kind of justice Trump would like to appoint. A vocal reactionary, he has called Roe v. Wade “the worst abomination in the history of constitutional law.” He later added, “I stand by that comment. I believe that not only is [Roe] unsupported by the text and structure of the Constitution, but it has led to a morally wrong result. It has led to the slaughter of millions of innocent unborn children.”
While serving as Attorney General of Alabama, Pryor wrote an amicus brief in Lawrence v. Texas (2003) urging the Supreme Court to uphold a Texas law banning sodomy, which he equated to prostitution, adultery, necrophilia, bestiality, incest and pedophilia. He does however oppose discrimination against transgender people.
Amul Thapar of Kentucky, U.S. Court of Appeals for the Sixth Circuit. As a judge for the United States District Court for the Eastern District of Kentucky, Thapar sentenced a nun to a 35-month prison term on terrorism charges for unlawfully entering and defacing a nuclear weapons bunker at a military facility. He is a regular speaker at Federalist Society events.
Raymond Kethledge of Michigan, U.S. Court of Appeals for the Sixth Circuit. Another Sixth Circuit justice, Kethledge boasts a solid pro-business record on that court. He wrote a book on leadership that included a favorable profile of Pope John Paul II.
Keith Blackwell of Georgia, Supreme Court of Georgia. A younger potential nominee, Blackwell has a legal practice background in criminal prosecution and in commercial litigation. He serves as a member of the Board of Advisors for the Atlanta Chapter of the Federalist Society
Charles Canady of Florida, Supreme Court of Florida. Elected to the U.S. House of Representatives in 1992 as a Republican, Canady coined the misleading and inflammatory term “partial-birth abortion” during the drafting of the 1995 “Partial-Birth Abortion Ban Act,” a political provocation aimed at weakening Roe v. Wade and deepening a fascistic base in the Republican Party.
Steven Colloton of Iowa, U.S. Court of Appeals for the Eighth Circuit. A clerk for right-wing justice William Rehnquist from 1989 to 1990, Colloton served in the Department of Justice’s Office of Legal Counsel under president George H.W. Bush between 1990 and 1991. From 1995 to 1996 Colloton served as an associate independent counsel in the Office of Independent Counsel Kenneth Starr.
Allison Eid of Colorado, U.S. Court of Appeals for the Tenth Circuit. As a Colorado Supreme Court justice and as an academic, Eid stood out as thoroughly far right, as a pro-business, pro-police voice. Eid opposes campaign finance laws, laws prohibiting gerrymandering, and those supporting public education. She is reportedly a frontrunner for a Trump nomination.
Raymond Gruender of Missouri, U.S. Court of Appeals for the Eighth Circuit. Gruender boasts the political advantage of a sympathetic personal background: he prevented his father, who had just shot and killed Gruender’s mother, from then killing his 11-year-old brother. Apart from this, Gruender supports laws that restrict access to abortion, including a South Dakota law requiring women to listen to a list of bogus health problems supposedly related to abortion including “increased risk of suicide.” Like many of his cohorts on the Trump list, he also doubts the legality of requiring health plans to provide contraception.
Thomas Hardiman of Pennsylvania, U.S. Court of Appeals for the Third Circuit. A frontrunner at least at one time, Hardiman is noteworthy for being the first member of his family to attend college, for working his way through Georgetown Law School as a cab driver, and for being a political reactionary opposed to inmates’ rights and free speech, unless that speech is the posting of the Ten Commandments on public property.
Thomas Lee of Utah, Supreme Court of Utah. A former law clerk of the reactionary “originalist” Clarence Thomas, Lee also served as the faculty advisor for the Federalist Society student chapter at Brigham Young University law school. Lee’s judicial opinions and other writings closely follow those of the late Antonin Scalia and his close colleague, Clarence Thomas. He served in the administration of George W. Bush, defending it against claims by Guantanamo Bay inmates illegally detained without trial or access to a lawyer.
Edward Mansfield of Iowa, Supreme Court of Iowa. Mansfield’s record shows opposition to the rights of criminal defendants in regard to the death penalty and hostility to sexual harassment claims by women. He wrote a concurring opinion in Gartner v. Iowa Department of Health (2013) that showed dismay that Iowa law required that a same-sex spouse be listed on a child’s birth certificate in the same manner as would apply to a heterosexual couple.
Federico Moreno of Florida. A Venezuelan-born Catholic and former federal public defender, this candidate was one of the first Hispanics to serve in the federal judiciary and one of very few minorities on Trump’s list. As he is only a trial court judge, he is not the most likely pick.
Kevin Newsom of Alabama, U.S. Court of Appeals for the Eleventh Circuit. Yet another Federalist Society card-carrier, Newsom joined that organization in 1999 and has held a number of posts in it. He also became a member of the Chamber of Commerce’s Chamber Litigation Center in 2014, evidence of his pro-business philosophy. In a venomous attack on Roe v. Wade, he compared the decision legalizing abortion to the Dred Scott opinion, which sanctioned slavery.
Margaret Ryan of Virginia, U.S. Court of Appeals for the Armed Forces. Ryan attended law school through the Marine Corps Law Education Program at Notre Dame Law School. She clerked for Clarence Thomas between 2001 and 2002, an indicator that she ascribes to right-wing extremism of the originalist variety.
David Stras of Minnesota, U.S. Court of Appeals for the Eighth Circuit. Another Federalist Society jurist and former Clarence Thomas clerk, Stras has praised the reactionary former Supreme Court justice Pierce Butler, who believed that Social Security and other New Deal programs were unconstitutional. He has described the Supreme Court’s rulings on school integration, abortion and homosexual rights condescendingly as “ventures into contentious areas of social policy.” This is a textbook argument for letting each state decide the fate of critical democratic and civil rights.
Diane Sykes of Wisconsin, U.S. Court of Appeals for the Seventh Circuit. A Google search for this candidate returns a page of her credentials maintained by the Federalist Society, whose events regularly feature Sykes as a contributor, including a November 2016 national convention titled “The Jurisprudence and Legacy of Justice Scalia.” Like William Pryor, Sykes earned a mention from then candidate Trump in a February 2016 Republican primary debate as a promising Supreme Court prospect. Conservative commentators consider her an easier confirmation prospect than some other candidates with a similar political inclination.
Timothy Tymkovich of Colorado, U.S. Court of Appeals for the Tenth Circuit. Still another Federalist Society favorite, and like Sykes, a member with a home page and a list of speaking events, Tymkovich gave a green light to religious challenges of health care plans at the appellate court level in Hobby Lobby v. Sibelius. In 1996, while serving as Colorado Solicitor General, he argued that a state law banning local governments from enacting legal protections for homosexuals did not violate the 14th Amendment to the US Constitution’s equal protection clause in Romer v. Evans (for a portrait of judicial reaction, readers should examine Scalia’s dissent in that case). Only his age bodes ill for his likelihood as a Supreme Court nomination, as Trump and congressional Republicans will no doubt aim to make the most of the court’s life appointment term.
Robert Young of Michigan, Supreme Court of Michigan (Ret.). One of the few minority candidates on Trump’s list, Young, who is African-American, played a right-wing role in Michigan and Detroit-area politics before becoming general counsel for Michigan State University. At 67 years old, he is not a likely finalist. Like most everyone else on the list, he fancies himself a “judicial traditionalist” or “textualist” which means that states and large corporations can do as they please.
Don Willett of Texas, Supreme Court of Texas. The 51-year-old product of the Republican Party machine in Texas served on George W. Bush’s presidential campaign and transition team, before serving as Special Assistant to the President and Director of Law and Policy for the White House Office of Faith-Based and Community Initiatives, a political agency designed to replace what remained of the social safety net with religious charities. Later, as Deputy Texas Attorney General for Legal Counsel in 2003, Willett fought to protect a Ten Commandments monument on the grounds of the state capitol. He formerly took to mocking president Trump from the right via Twitter, a practice that ceased some months ago.
Patrick Wyrick of Oklahoma, Supreme Court of Oklahoma. A friend of the oil and gas industries, the 37-year-old Wyrick has practiced law for just eleven years, one year less than the American Bar Association’s minimum suggested practice term for a Supreme Court justice. Nonetheless, he stands an excellent chance of receiving Trump’s support. His protégé is the current head of the Environmental Protection Agency, the antiregulatory fanatic Scott Pruitt. As Oklahoma’s Solicitor General, Wyrick filed an amicus brief in support of religious objections to reproductive services covered by insurance plans in Hobby Lobby v. Sibelius. Espousing the fraudulent notion of a corporation’s right to religious freedom, he argued that a company’s “religious faith is no less worthy of respect and protection than is the religious faith practiced by church members.”
This brief review of Trump’s Supreme Court candidates makes clear that Anthony Kennedy’s replacement will represent a rancid ideological mixture of influences from Antonin Scalia, Clarence Thomas and William Rehnquist, all seething reactionaries once viewed as the extreme right wing of the high court.
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[5 June 2018]