Anthony Kennedy’s impending retirement means it’s open season on predicting who will be nominated to fill his seat on the U.S. Supreme Court. I offer my own analysis and prediction below. It’s a familiar name for those who have been paying attention to President Trump’s judicial nominations so far.
The President has confirmed that he intends to nominate someone from the list of 25 candidates previously identified by the White House. That is the only certainty. But it’s still possible to whittle down that list significantly using a combination of logic and observation of the President’s nomination trends.
One important factor will be the candidate’s professional background. The President has shown an affinity for nominating state judges to the federal bench: I counted at least five Trump nominees to the appellate courts and twenty Trump nominees to the district courts who were serving as state judges at the time of nomination. And the Supreme Court short list includes seven current or retired state supreme court justices. Given that much of the Supreme Court’s docket involves constitutional challenges to state legislation, it would make sense to have a Justice with considerable experience in interpreting state law.
At the same time, if the President nominates a sitting federal judge (and there are seventeen on the short list), it creates a two-for-one opportunity to fill both the Supreme Court seat and the vacancy that would be created in the lower court. (It might even create a three-for-one opportunity if a Court of Appeals judge is nominated to the Supreme Court, and a federal district court judge is nominated to the Court of Appeals, leaving a vacancy on the district court.) This kind of nomination cascade is fairly common, as I explain here. Moreover, if the President nominates a federal judge who was confirmed within the past year, he can be more confident that the candidate will survive Senate scrutiny. (An extreme form of this strategy came a few months ago, when the President nominated Judge A. Marvin Quattlebaum to the Court of Appeals only weeks after the Senate confirmed Quattlebaum to the district court.)
Of course, it is not possible to nominate a candidate who is simultaneously serving on a state court and a federal court. But I suspect the President will try the next best thing: nominating a sitting federal judge with state judicial experience. Four short list candidates fit the bill: Fifth Circuit Judge Don Willett (Texas), Sixth Circuit Judge Joan Larsen (Michigan), Eighth Circuit Judge David Stras (Minnesota), and Tenth Circuit Judge Allison Eid (Colorado). A fifth possibility is Britt Grant, a current Georgia Supreme Court Justice whose nomination for the Eleventh Circuit is pending. Withdrawing Grant’s Eleventh Circuit nomination and nominating her instead to the Supreme Court would create the same cascade effect as if she were already on the federal bench.
I also suspect that the President will nominate a woman. While his judicial nominees thus far have been predominantly white and male, there is no shortage of qualified women on Trump’s short list. And nominating a woman would be a tactical move for the President: if Senate Democrats oppose a female nominee, it could create the very sort of political wedge that Trump delights in exploiting on the stump.
Geography could play into the decision as well. With a midterm election approaching, the President may nominate a respected candidate from a swing state or a state where it helps to solidify his credentials. (It bears noting that none of the 25 candidates are from states encompassed by the Ninth Circuit, the old haunt of Justice Kennedy.)
That leaves three viable candidates from the short list: Judge Eid of Colorado, Judge Larsen of Michigan, and Justice Grant of Georgia. Eid and Larsen have very similar resumes: law professors who became state supreme court justices, and who last year were nominated and confirmed to their respective seats on the U.S. Court of Appeals. But geography is a major hindrance to an Eid nomination. The last Supreme Court nominee, Neil Gorsuch, is also from Colorado (indeed, Eid took his seat on the Tenth Circuit), so it seems extremely unlikely that the President would go back to that well so quickly. A Michigander on the court, by contrast, might strengthen the President’s position in a toss-up state, and would give midwesterners a sense that they had a voice on the Supreme Court.
The major plus for Grant over Larsen is her age: at only 40 years old, Grant would be even younger than Clarence Thomas at the time of his confirmation (43 years old in 1991). And Trump has said that he will look to nominate someone “that’s going to be there for 40 years, 45 years.” But Larsen herself is only 50 years old–still young for a Supreme Court Justice–so the age difference seems only marginally relevant. Larsen also gets the nod over Grant in that she has successfully passed the Senate gauntlet once before, with bipartisan support and the votes of both of her (Democratic) home state senators.
Judge Larsen is brilliant, highly accomplished, and has already run through the federal nominations gauntlet once. Don’t be surprised if she is standing with the President at a press conference in the near future.
The Interdependent Third Branch 