Earlier this year, presumptive Republican presidential nominee Donald Trump pledged to release a list of potential Supreme Court nominees — all of whom he said would be very conservative — in order to allay fears that he may name someone to the Supreme Court who is insufficiently sympathetic to the GOP’s position on legal interpretation. On Wednesday, Trump released his list, and the list will not disappoint even the more hard-line conservatives.
Trump has, at various times, said that he was working with the Heritage Foundation, a conservative think tank led by former tea party Sen. Jim DeMint (R-SC), and the Federalist Society, a conservative legal society that morphed into an incubator for lawsuits seeking to dismantle much of the federal government, in order to draw up the list. Five of the names on Trump’s list also appeared on a list of eight potential Supreme Court nominees that Heritage published at the end of March.
The list, which Trump has said will make up the entire universe of potential Supreme Court nominees in a Trump administration, is a testament to the work Republicans have done at both the federal and state level to stock the lower courts with ideologically reliable judges with resumes that make them plausible Supreme Court nominees. About half of the names on Trump’s list are federal judges, while five are state supreme court justices. Many clerked for some of the most conservative individuals to sit on the Supreme Court in their lifetime. Only three are women. All are white.
Judge Steven Colloton sits on the United States Court of Appeals for the Eighth Circuit. He clerked for Chief Justice William Rehnquist and was appointed by President George W. Bush. Colloton also worked as an associate independent counsel under Clinton inquisitor Kenneth Starr prior to becoming a judge.
Among other things, Colloton’s has an unusually well defined record on reproductive rights — and that record suggests that he is a reliable conservative. In 2008, the Eighth Circuit heard Planned Parenthood v. Rounds, a challenge to a South Dakota law that required abortion providers to tell their 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. Nevertheless, Colloton joined an opinion which reinstated the law after a panel of his court ordered it halted.
Additionally, the Eighth Circuit is the only federal appeals court to strike down the Obama administration rules governing access to birth control that were recently before the Supreme Court in Zubik v. Burwell. Colloton joined that opinion as well.
Justice Allison Eid sits on the Colorado Supreme Court. She clerked for Justice Clarence Thomas and served as a speechwriter to Education-Secretary-turned-conservative-radio-host William Bennett.
In fairness, some of Eid’s writings suggest that she takes a more moderate approach than her former boss, Justice Thomas — although that’s not saying very much. Thomas, who Trump has named as his favorite justice, would restore a long-ago discredited reading of the Constitution that the Court once used to strike down child labor laws on states’ rights grounds. In a 2003 law review article, Eid largely embraces a conservative vision of states’ rights, but she hints that she would not go quite as far as Thomas. Referring to the discredited theory that Thomas embraces, Eid wrote that the Supreme Court “has given no indication that it is interested in repeating the mistakes of the past.”
Yet, even if Eid would not force children to work in cotton mills, her record includes no shortage of evidence that she would make conservatives very happy. Among other things, Eid authored a 2003 opinion holding that Colorado universities cannot ban concealed weapons on campus.
Judge Raymond Gruender sits with Colloton on the Eighth Circuit. A George W. Bush appointee, Gruender alternated between private practice and work as a prosecutor before becoming a judge. He also worked as Missouri state director for Sen. Bob Dole’s (R-KS) unsuccessful presidential campaign in 1996.
Like his fellow Eighth Circuit judge, Gruender’s record suggests conservative views on reproductive freedom. He authored the opinion in Rounds, which Colloton joined, upholding South Dakota’s anti-abortion law. Gruender 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. Notably, this decision reversed a lower court which reached the opposite conclusion.
Judge Thomas Hardiman of the United States Court of Appeals for the Third Circuit is one of the more enigmatic names on Trump’s list of potential judges — he appears to have had more luck steering away from controversial cases than his colleagues on the Eighth Circuit. After working in private practice for several years, Hardiman received the first of two judicial appointments from President George W. Bush in 2003 to a federal trial court. Bush later promoted Hardiman to the Third Circuit in 2007.
Despite a thinner ideological profile than some of the other names on Trump’s list, Hardiman has spoken at several events hosted by the Federalist Society, one of the conservatives groups that Trump says he relied on in drawing up his list.
One especially high profile case that Hardiman heard during his time on the Third Circuit involved a settlement the NFL agreed to pay to former players suffering from brain damage resulting from their time in the League. Hardiman joined an opinion rejecting the appeal of several players who wanted to be included in the settlement in case they developed neurological problems in the future. At oral argument in the case, Hardiman appeared particularly skeptical of these players’ arguments, claiming that “the settlement is going to be watered down by every field-goal kicker who is depressed” if the players were included.
Judge Raymond Kethledge is a George W. Bush appointee to the United States Court of Appeals for the Sixth Circuit. A former law clerk to Justice Anthony Kennedy, Kethledge was confirmed in the final months of the Bush presidency, despite the fact that Democrats controlled the Senate, after a deal was brokered where Bush agreed to also nominate an older Democratic judge to a different vacancy on the Sixth Circuit along with the youthful Kethledge. Both were confirmed.
Kethledge won praise from many conservative media outlets recently after he upbraided the IRS for failing to produce information related to a lawsuit by a tea party group which claims it was illegally targeted by the agency. The IRS faced several embarrassing news cycles after news broke that it singled out some conservative groups for additional scrutiny after those groups requested tax exempt status, although subsequent reporting showed that the IRS also applied similar scrutiny to many progressive groups. Nevertheless, this supposed scandal remains a cause célèbre among many Republicans.
Additionally, Kethledge joined a 2008 opinion in favor of the Ohio Republican Party, which sued to potentially prevent as many as 200,000 registered voters from having their ballot counted. This decision in favor of the Ohio GOP was reversed just three days later in a unanimous opinion by the Supreme Court.
Justice Joan Larsen is a very new appointee to the Michigan Supreme Court — she joined last September after she was appointed by Gov. Rick Snyder (R). Before that, she was a law professor, a law clerk to Justice Antonin Scalia, and a senior political appointee in the Justice Department’s Office of Legal Counsel under President George W. Bush.
During her time in the Justice Department, according to the ACLU, Larsen co-authored a secret memorandum regarding detainees rights challenge their detention — the Bush administration took a hard line on this issue that was 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.
In an interview shortly after the death of her former boss, Larsen said that Justice Scalia “is rightly acknowledged as one of the greatest legal minds of our era.”
Thomas Lee is Associate Chief Justice of the Utah Supreme Court, where he has served since 2010. A former law clerk to Justice Thomas, Lee is the brother of Sen. Mike Lee (R-UT), arguably the most conservative member of the United States Senate. Among other things, Senator Lee agrees with his brother’s former boss that federal child labor laws are unconstitutional.
Justice Lee also served as a political appointee in the Bush Justice Department prior to becoming a judge.
If he is nominated to the Supreme Court, advocates on both sides of the abortion issue will likely pay a great deal of attention to Lee’s concurring opinion in Carranza v. United States. Though he deemed the matter a “difficult one,” he ultimately concluded that a fetus does count as a “minor child” for the purposes of Utah’s wrongful death law. The reasoning of Lee’s opinion would not necessarily carry over to the question of whether a fetus also counts as a “person” for purposes of the Fourteenth Amendment — a popular argument among anti-abortion advocates — but it is likely to cheer them if he is nominated.
A former Alabama Attorney General appointed to the United States Court of Appeals for the Eleventh Circuit by George W. Bush, Pryor is one of two judges Trump previously named as a possible Supreme Court nominee. Pryor’s nomination to the Fifth Circuit was vehemently opposed by Democrats — among other things, Pryor once described Roe v. Wade as creating “a constitutional right to murder an unborn child.”
Pryor does have at least one idiosyncratic decision, however. 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.”
Justice David Stras serves on the Minnesota Supreme Court. Stras clerked for Justice Thomas, and briefly worked in private practice before becoming a professor at the University of Minnesota Law School.
Ironically, much of Stras’ scholarship prior to joining the bench offered ideas to limit the power of the United States Supreme Court. Stras proposed creating a “golden parachute” for justices to encourage them to retire. He also proposed requiring justices to “ride circuit,” a practice abandoned more than a century ago whereby Supreme Court justices would spend much of their time traveling to various parts of the country to hear ordinary cases rather than focusing exclusively on the difficult and contentious cases that reach the Court in Washington, DC.
In a statement that is likely to be combed over repeatedly if Stras is nominated to the Supreme Court, Stras also wrote that “the [Supreme] Court’s own ventures into contentious areas of social policy — such as school integration, abortion, and homosexual rights — have raised the stakes of confirmation battles even higher.”
Judge Diane Sykes of the United States Court of Appeals for the Seventh Circuit is, along with Pryor, the other of the two names Trump previously floated as a potential justice. A former justice on the Wisconsin Supreme Court, Sykes rose through the state judiciary prior to her appointment to her current job by President George W. Bush.
Sykes’ record suggests that she would be an extraordinarily reliable conservative. She backed a Wisconsin voter ID law. She wrote a birth control decision, that, at the time, 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.” And she wrote that anti-gay groups have a constitutional right to continue receiving government subsidies even if they refuse to comply with laws or other rules prohibiting discrimination.
Texas Supreme Court Justice Don Willett is a bit of a legend on Twitter. The jovial and, at times, genuinely hilarious jurist also may regret at least one tweet he previously sent about Trump’s potential Supreme Court nominees:
Donald Trump haiku—
— Justice Don Willett (@JusticeWillett) June 16, 2015
As personable as Justice Willett may be, however, nominating him would be a declaration of war on liberalism, the Democratic Party, and, indeed, anyone who believes in the legitimacy of the last 80 years of American constitutional law.
In 1905, the Supreme Court handed down its anti-canonical decision in Lochner v. New York, a decision that conservative Chief Justice John Roberts described as “discredited.” Lochner struck down a law limiting the number of hours that can be worked by New York bakery workers to 60 a week — prior to this law, bakery workers worked, on average, about 13 to 14 hours a day. This decision also formed the basis for subsequent decisions invaliding minimum wage laws and laws protecting a worker’s right to organize.
Although Lochner remains out of favor with nearly all lawyers, judges, and legal scholars, a handful of libertarian scholars have tried to rehabilitate the decision. In a 2015 opinion, Willett did not go quite as far as many of these scholars in pushing for Lochner to be revived, but he did embrace many of their arguments. “A wealth of contemporary legal scholarship is reexamining Lochner, its history and correctness as a matter of constitutional law, and its place within broader originalist thought, specifically judicial protection of unenumerated rights such as economic liberty,” the justice wrote. He ended his opinion by romanticizing the sort of libertarian arguments favored by Lochner apologists. “The Court today rejects servility in the economic-liberty realm,” Willett said. “There remains, as Davy Crockett excitedly wrote his children, ‘a world of country to settle.’”