With less than one week left until President Trump announces his nominee to fill the second SCOTUS vacancy since he took office, not all names are getting equal attention. President Trump indicated the other day that he narrowed down his initial list to five finalists. While all members on this whittled down list are not known, a few judges are seen as frontrunners. Almost all lists of potential nominees include Judge Brett Kavanaugh of the D.C. Circuit, the judge who Empirical SCOTUS reported as a likely nominee in the event of a vacancy in December. The other judge floating around many pundits’ predictions is Judge Amy Coney Barrett of the Seventh Circuit Court of Appeals.
Even though the shortlist is not entirely clear, this post analyzes facets of five judges that are likely leading the way. These individuals include: Judges Kavanaugh and Barrett along with Judges Thomas Hardiman of the Third Circuit, and Amul Thapar and Raymond Kethledge from the Sixth Circuit. Judges Kavanaugh and Kethledge both clerked for Justice Kennedy as did the most recently confirmed justice – Justice Gorsuch. If either becomes the next justice on the Court, this would be the first time that any current or former Supreme Court Justice had two former clerks later become justices. Of the remaining judges, Judge Barrett clerked for Justice Scalia, Hardiman did not clerk, and Thapar’s highest level clerkship was for Judge Jones on the Sixth Circuit.
Below is the year each of these justices in this initial dataset was born along with the five frontrunners.
These potential nominees bring several unique characteristics to the table. To begin, two of these judges, Thapar and Hardiman both previously worked at the district court level (Hardiman in the Western District of Pennsylvania and Thapar in the Eastern District of Kentucky).
A Justices Dataset that includes all Supreme Court Justices that joined the Court after 1900 (derived from the Supreme Court Justices Database), shows that only four justices – Sotomayor, Whittaker, Clarke, and Sanford – also previously worked as judges at the district court level.
This lack of district court experience is not the norm for federal judges. A second dataset, the Judges Dataset derived from the Federal Judicial Center’s Biographic Directory of Judges, shows that of all federal judges born after 1850, only 18% started out as non-district court judges. The following figure shows the raw count data of where federal judges who did not first sit on a district court began their careers.
The three judges of the frontrunners that did not first sit on district courts, Judges Kavanaugh, Barrett, and Kethledge all began their judicial careers on federal courts of appeals.
Except for Justice Kagan, all of the current Supreme Court Justices previously served on one of the courts of appeals. Not only do justices tend to hail from courts of appeals generally, but they also tend to hail from particular courts of appeals. The next figure looks at the courts of appeal where justices in the Justices Dataset sat prior to joining the Supreme Court.
Three of the judges, Kavanaugh, Thapar, and Kethledge served on the top two courts in the figure – the Sixth and D.C. Circuits.
Not surprisingly, all of the frontrunners were nominated to courts of appeals by Republican Presidents. Kethledge, Kavanaugh, and Hardiman were nominated by George W. Bush and Thapar and Barrett were nominated by Trump. The majority of judges in the Judges Dataset were initially nominated by Republican Presidents as well.
Across time though Presidents have had varied opportunities to nominate federal judges. Trump is already a distinct player in this area. The following figure looks by appointing president at counts of judges appointed to their first federal judgeship based on data in the Judges Dataset.
Two democrats and two republicans – Presidents Clinton, Obama, W. Bush, and Reagan lead the pack with the most appointments. With 37 nominations for judges’ first federal judgeships, President Trump has gained ground on those presidents in his first two years in office.
Geography is also an important background element of federal judges as judges tend to come from specific geographic locales. The figure below shows the relative number of federal judges in the Judges Dataset that were born in the various states.
The top four states where most judges in this set were born are New York, Pennsylvania, California, and Illinois. Of the frontrunners, Judge Kavanaugh was born in Maryland where between 1 and 2% of federal judges in the dataset were born, Judge Kethledge was born in New Jersey along with between 3 and 4% of the set, Judge Thapar was born in Michigan along with just under 3% of the dataset, Judge Hardiman was born in Massachusetts where close to 3% of the judges in the set were born, and Judge Barrett was born in Louisiana along with just under 3% of the Judges Dataset.
The majority of frontrunners fit the most common racial/gender demographic profile of federal judges in the Judges Dataset – white and male.
[Note: several labels that categorized only one judge were removed]
The two frontrunners who buck this trend are Judge Barrett, a woman, and Judge Thapar who is of Indian American decent.
The frontrunners are all recognized as top conservative minds on the federal judiciary. Each comes from a distinguished academic background including a highly ranked law school although none of them went to the most common law school of justices in the Justices Dataset – Harvard Law.
Judge Kavanaugh went to the school that produced the second most judges in the set – Yale Law, Kethledge went to the fourth school on the list – Michigan Law, and Thapar went to Earl Warren’s alma mater U.C. Berkeley Law. Barrett and Hardiman went to Notre Dame and Georgetown Law respectively, either of which would be a first for a Supreme Court Justice.
All federal judges are rated by the American Bar Association based on their qualifications. This process has been under scrutiny over the past several years regarding its neutrality. Nonetheless, this is one of the measures of nominees reviewed by the senators prior to confirmation votes. Judges in the Judges Dataset received one of five ratings from the A.B.A. – exceptionally well qualified, well qualified, qualified, not qualified, or not qualified by reason of age. The last figure shows this breakdown for the Judges Dataset.
Of the frontrunners, Thapar and Hardiman both earned well-qualified ratings while Kethledge and Barrett were voted well qualified by a substantial majority and qualified by a minority of A.B.A. raters. Judge Kavanaugh had the unusual experience of having his qualifications rating lowered from a majority well qualified and minority qualified to a majority qualified and minority well qualified. Several Republican Members of Congress criticized this alteration as motivated by partisanship.
A Few Final Notes
For the justices in the Justices Dataset the average time between nomination and a final vote in the Senate was 32 days although that average time becomes greater if we curtail the sample to more recent nominations. The average hearing length for these justices was three days although was the maximum was 19 for Justice Brandeis and 14 of the justices had single day hearings.
The context provided above is not intended to answer the question of which judge President Trump will choose as nominee. The comparisons are useful though in understanding ways we can distinguish between candidates. In the end we are left not far from where we began: Judges Kavanaugh and Barrett are the two leading contenders with Thapar, Hardiman, and Kethledge not far behind and 20 other judges not yet out of the running.
On Twitter: @AdamSFeldman
Now consulting at Optimized Legal