“I am looking to appoint judges very much in the mold of Justice Scalia,” President Trump said while he was still a candidate. He says that he’s partnered with conservative groups like the Heritage Foundation and the Federalist Society to identify such a judge to place on the Supreme Court. And, if his remarks at a pre-inaugural press conference can be trusted, he plans to name that judge in less than two weeks.
Trump reportedly considered eight judges — federal appellate Judges William Pryor, Diane Sykes, Steven Colloton, Thomas Hardiman, Raymond Kethledge, Raymond Gruender, and Neil Gorsuch, along with Michigan Supreme Court Justice Joan Larsen — for the seat that Senate Republicans held open for nearly a full year in the hopes that Trump would get to fill it. According to Jan Crawford, a former Supreme Court reporter who is very well-sourced within the Republican legal establishment, the White House is primarily focused on Gorsuch, Pryor, and Hardiman.
Here’s what you need to know about the three judges on Trump’s reported short list, as well as the five other names under consideration.
Like many names on Trump’s list, Judge Neil Gorsuch has strong social conservative credentials. He authored a book arguing against legalization of assisted suicide and euthanasia, and he sided with religious employers seeking to limit their employees’ rights to birth control coverage in the lower court decision in Hobby Lobby.
Gorsuch also emerged as one of the judiciary’s leading spokespeople for an effort to hobble the Obama administration’s ability to promulgate progressive labor and environmental regulations. In the waning years of Obama’s presidency, Federalist Society events grew increasingly fixated on limiting federal agencies’ authority to take regulatory action of any kind. Often, they focused their ire on the Supreme Court’s venerable Chevron doctrine, which holds that courts should generally defer to agencies when the law authorizing a regulation is ambiguous, and typically should only strike down such regulation if the law clearly does not permit the agency’s action to move forward.
Gorsuch may be the judiciary’s most vocal proponent of the Federalist Society’s crusade. In a 2016 opinion, he claimed that Chevron is “more than a little difficult to square with the Constitution of the framers’ design.”
The practical impact of a court decision overruling Chevron would be a significant shift in power from a branch of government that is elected, the executive, to a branch that is not, the judiciary. Currently, when the law is uncertain, courts defer to executive agencies. Under Gorsuch’s preferred rule, courts would instead decide for themselves which regulations will stand and which will go — and they will do so without much statutory guidance since Chevron is only an issue when the law is unclear.
In such a world, it would matter even more which party controls the Supreme Court. Rather than deferring to rules pushed by a Democratic administration, a Republican Court would be free to strike these rules down. Meanwhile, the same Court would be free to uphold every single regulation pushed by a Republican administration.
If Trump chooses Judge Willaim Pryor, his nomination would be viewed as a declaration of war by many Democrats on and off Capitol Hill.
Pryor attacked Roe v. Wade and the Supreme Court’s landmark criminal justice decision in Miranda v. Arizona as “the worst examples of judicial activism,” and he also described Roe as “the worst abomination of constitutional law in our history.” As Alabama’s attorney general, he filed a brief in the Supreme Court arguing that “States should remain free to protect the moral standards of their communities through legislation that prohibits homosexual sodomy” (the Supreme Court disagreed in Lawrence v. Texas).
Since joining the United States Court of Appeals for the Eleventh Circuit, Pryor’s views do not appear to have moderated, with one possible exception.
Remember Lilly Ledbetter, the Goodyear Tire supervisor who was paid less than her male colleagues and then stripped of a legal remedy by the Republican members of the Supreme Court? Pryor joined a lower court decision that also sided against Ledbetter for the same reason.
Similarly, Pryor penned a majority opinion suggesting that lawyers who wish to challenge voter ID laws, a common method of voter suppression, must clear potentially insurmountable hurdles in order to do so. And he called for employers’ rights to ignore laws they object to on religious grounds to be expanded even beyond the bounds established by the Supreme Court’s Hobby Lobby decision.
Pryor does, however, have one unexpected decision. He joined a 2011 opinion holding that “a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.”
Judge Thomas Hardiman of the United States Court of Appeals for the Third Circuit is one of the more ideologically enigmatic names on Trump’s list — although Hardiman has spoken at several events hosted by the conservative Federalist Society.
Indeed, it is noteworthy that a white paper by the liberal Alliance for Justice, which compiled opposition research against potential Trump appointees, only cites one opinion authored by Hardiman. In that case, Drake v. Filko, Hardiman dissented from a decision by two of his colleagues upholding a New Jersey law providing that someone must demonstrate that they have a “justifiable need” before they can receive a license to carry a firearm in public.
Hardiman also wrote a dissent in B.H. v. Easton Area School District holding that the First Amendment permits school officials to ban breast cancer awareness bracelets reading “I ♥ boobies! (KEEP A BREAST).” Though nine of his colleagues disagreed, Hardiman argued that these bracelets fell within an exception to the First Amendment’s free speech protections for student speech that is “lewd, vulgar, indecent, or plainly offensive.”
Like Pryor, Judge Diane Sykes of the United States Court of Appeals for the Seventh Circuit backed a voter ID law. She also wrote an opinion expanding religious objectors’ ability to limit their employees’ access to birth control coverage that SCOTUSBlog’s Lyle Denniston described as “the broadest ruling so far by a federal appeals court barring enforcement of the birth-control mandate in the new federal health care law.”
Sykes’ most revealing opinion, however, may be Christian Legal Society v. Walker — where she claimed that anti-gay groups have a constitutional right to continue receiving government subsidies even if they engage in discrimination. Indeed, in Walker, Sykes denied that anti-gay discrimination exists at all, so long as people engaged in discrimination make an exception for gay people who refrain entirely from having sex:
SIU also claims CLS violated the university’s Affirmative Action/EEO policy, which states that SIU will “provide equal employment and education opportunities for all qualified persons without regard to[, among other things,] sexual orientation.” We are skeptical that CLS violated this policy. CLS requires its members and officers to adhere to and conduct themselves in accordance with a belief system regarding standards of sexual conduct, but its membership requirements do not exclude members on the basis of sexual orientation. CLS’s statement of faith specifies, among other things, a belief in the sinfulness of “all acts of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery, and homosexual conduct.”
Four years after Sykes handed down her decision in Walker, the Supreme Court rejected her approach in Christian Legal Society v. Martinez. Nevertheless, the question of whether businesses and employers have a legal right to discriminate against LGBT people in many contexts remains an open question under the Supreme Court’s current precedents. The fact that Sykes was willing to say that anti-gay groups have a right to government subsidies suggests that she’d also conclude that they’re free to fire LGBT employees because of their status or refuse to serve LGBT customers.
Nearly every line of Judge Steven Colloton’s resume marks him as a Republican all-star. Princeton undergrad and Yale Law School. A clerkship with Chief Justice William Rehnquist. Two years working for Clinton inquisitor Kenneth Starr. And an appointment to the United States Court of Appeals for the Eighth Circuit from George W. Bush.
As a judge, Colloton has drawn an unusually high number of reproductive rights cases, and has consistently voted to reduce those rights. He voted to reinstate a South Dakota law requiring abortion providers to tell patients that abortions terminate “an existing relationship” with an “unborn human being” and that abortions lead to an increased risk of suicide (they don’t). And he also joined the only federal appeals court decision striking down the Obama administration rules governing access to birth control which were before the Supreme Court in Zubik v. Burwell.
It’s worth noting that these are the sort of decisions one might expect from any judge that a Republican president would consider appointing to the Supreme Court — all four of the Republican justices appeared sympathetic to Colloton’s position in Zubik, although they lacked the fifth vote they needed to make it the law of the land.
At least one of Colloton’s opinions, however, suggests that he is well to the right even of the Republican mainstream on issues like workplace discrimination and sexual harassment. In Wallace v. DTG Operations, a woman was fired less than a month after she accused her boss of sexually harassing her by, among other things, calling her into his office to “view pornographic computer images of the cartoon character Popeye” and using “the speaker phone to dial a number that played a recorded message about masturbation.”
Two George W. Bush appointees, Judges Michael Melloy and Raymond Gruender (who is also on Trump’s list) agreed that this woman should be allowed to have a full trial to determine if she was illegally filed in retaliation for her complaint against this supervisor. Colloton, however, dissented, arguing that the real reason why she was fired was because the company needed to lay someone off for economic reasons.
In the end, a jury determined that this woman was fired for improper reasons, and she eventually won a $150,000 judgment.
Judge Raymond Gruender’s tragic personal story will undoubtedly play a starring role in the White House’s advocacy on his behalf, should Trump ultimately nominate Gruender for the Supreme Court. When he was 17, Gruender and his sister were shot by their father shortly before his father committed suicide. Gruender went on to spend much of his pre-judicial career as a prosecutor.
Though Gruender broke with Colloton in Wallace, the two men are mostly allies on the Eighth Circuit. Among other things, Gruender authored the Eighth Circuit’s opinion reinstating South Dakota’s anti-abortion law.
He also authored a 2007 opinion holding that employers may exclude birth control coverage from their employee’s health plans without violating the Pregnancy Discrimination Act, reversing a lower court decision in the process.
Should Gruender be the nominee, it is also likely that much of his confirmation hearing will focus on a 2000 police shooting of two unarmed black men. Two officers, a police detective and a federal drug agent, fired a total of 21 shots at Earl Murray and Ronald Beasley, killing both men. Gruender, who was a U.S. Attorney at the time, labeled the shooting “troubling,” and a federal investigation determined that the two men were shot “out of fear and panic.”
Nevertheless, Gruender decided that there was not enough evidence to pursue federal civil rights charges.
Judge Raymond Kethledge joined the United States Court of Appeals for the Sixth Circuit in 2008, despite the fact that Democrats controlled the Senate and were highly favored to win the White House that November, due to a lopsided deal struck between Senate Democrats and President George W. Bush. Under this deal, Bush agreed to nominate an older Democratic judge to another vacancy on the Sixth Circuit along with the much more youthful Kethledge. Judge Kethledge, a former law clerk to Justice Anthony Kennedy, quickly emerged as a “feeder judge” — one of the handful of elite judges whose clerks regularly go on to clerk for a Supreme Court justice.
As a judge, Kethledge has heard fewer controversial cases than many people on Trump’s list — court of appeals judges typically are randomly assigned cases and thus may go many years without developing a record on hot-button issues. He did, however, side with the Ohio Republican Party in a 2008 case that could have potentially prevented as many as 200,000 registered voters from casting a ballot. A unanimous Supreme Court reversed the decision Kethledge joined just three days after it was handed down.
Justice Joan Larsen is, perhaps, the most enigmatic of the names on Trump’s short list. Appointed to the Michigan Supreme Court last September, she’s had barely any time to establish a record on the bench.
Larsen does have many of the same kind of elite conservative credentials shared by other judges on Trump’s list. She clerked for Justice Scalia — who she described as “one of the greatest legal minds of our era,” and worked as a senior political appointee in the Justice Department’s Office of Legal Counsel (OLC) under President George W. Bush.
While at the Justice Department, according to the ACLU, Larsen co-authored a secret memorandum regarding detainees rights to challenge their detention — the Bush administration took a hard line on this issue, and its positions were repeatedly rejected by the Supreme Court. Larsen claims that she was not “read-in” to the now-infamous torture memorandums that were authored around the same time that she worked at OLC.
Larsen also remains an adjunct professor at the University of Michigan, and she’s published a handful of articles in scholarly journals. These articles tend to advance arguments that are popular in Federalist Society circles, but they also are largely concerned with academic debates and offer few specifics about how she might approach the more practical issues that come before the Supreme Court.
In one article, for example, she criticizes the Supreme Court’s landmark gay rights decision in Lawrence v. Texas, but not necessarily because she disagrees with the Court’s conclusion that the government cannot criminalize sex between consenting adults. Instead, she takes issue with the way Lawrence discussed foreign law.