Image via Associated Press
Nothing is certain except death and taxes. There is no sure bet at the moment on who Donald Trump will nominate to the Supreme Court. Perhaps news will leak prior to the 8PM EST / 5PM PST announcement of the candidate tomorrow, January 31st 2017, which was recently bumped up from Thursday evening. I’ve said from early on that my inclination is that Trump will nominate Judge Gorsuch from the Tenth Circuit to the vacant seat on the Court. There are several reasons for this suspicion as well as a possibility that I’m playing into a great instance of sleight of hand. Here is why:
- After the Garland nomination without confirmation hearings President Trump expects a contentious nomination process. Of the three most likely candidates at the moment, Judge Gorsuch poses the least threat of a fight on the Senate floor. Senator Schumer for instance promised to oppose any pick “out of the mainstream.” Of the candidates Gorsuch is by far the most mainstream. He is recognized as a great legal mind by scholars across the political spectrum. His former clerks praise and respect him (maybe no surprise here). He also has made little waves as an appeals court judge with perhaps his most debated ruling allowing an exception to the ACA contraception requirement for religious beliefs in the Hobby Lobby case that later made its way to the Supreme Court (which in turn affirmed Gorsuch’s decision). He is widely seen as a judge with strong conservative views that would fit in well to fill Justice Scalia’s shoes. While not all conservative politicians espouse his views on agency regulations, Judge Gorsuch is well versed in administrative law which may take on an even greater portion of the Supreme Court’s agenda during the Trump Presidency years.
- Judge Pryor provokes a much more vitriolic reaction among liberal circles for his espoused views on abortion among other controversial subjects. While Judge Pryor is linked to US Attorney General nominee Jeff Sessions through their ties to Alabama state politics, it seems that the potential of this tie to lead to a Supreme Court nomination is waning, especially with the nomination coming before any vote on Sessions’ confirmation. Judge Hardiman raised the ire of some because of his votes and written opinions that curtailed aspects of First Amendment protections and extended gun rights. Judge Hardiman is definitely the less controversial of the two candidates other than Gorsuch, and his harrowing backstory paints a picture of a man with more to offer the Court in terms of life experience than other potential nominees.
- Judge Gorsuch looks the part. This may not have seemed important several months ago but it appears increasingly important now. While President Trump started out with a list of twenty-one possible candidates for the nomination, with judges ranging from state court experience to federal court experience and with a range of backgrounds, this whittled down list is nowhere near as diverse. As predicted, all three likely candidates sit on a federal court of appeals and all three are white men. With such a narrowing, it is also possible that President Trump is zeroing in on other characteristics that fit with the current and historic membership of the Court (let me be clear this is not a normative statement of what should be, merely an observation). Gorsuch is the only one of the three candidates to attend an ivy-league law school like all other current members of the Supreme Court. He also received a PhD from Oxford University. Not that this makes him a more capable judge than the other two candidates – Judge Hardiman who drove a cab in high school and college and Judge Pryor who is from the South and perhaps more outspoken in his political views than most prior Supreme Court nominees (Robert Bork excepted). If Trump is for the typical Supreme Court pedigree, Gorsuch has these credentials. Such credentials may also be viewed favorably in a confirmation process that often regards such elite characteristics as plus factors.
- President Trump likes to keep the public on its toes. Whether through executive orders that spike massive protests or through incendiary tweets, he gets a reaction from the people. Even though it is unprecedented for a sitting President to create such a spectacle over a Supreme Court nomination, it would not be unprecedented for President Trump to have a trick up his sleeve. This could be anything ranging from a pick not included in his original list of twenty-one, or including Judge Gorsuch on the list for posturing purposes prior to the nomination to try to quell the Democrats cries for a “mainstream candidate.” At this point it’s anyone’s guess although based on the available evidence my money is on Gorsuch.
On Twitter: @AdamSFeldman