Politics & Policy

Cautiously Optimistic about Trump’s SCOTUS Shortlist

(Jonathan Ernst/Reuters)

In his dissent in last summer’s same-sex marriage case, Justice Antonin Scalia lamented that the Supreme Court is “hardly a cross-section of America.” The problem, Scalia wrote, is that the most serious questions of constitutional law are resolved by a “strikingly unrepresentative” group of attorneys from elite circles. Donald J. Trump’s list of eleven potential nominees to the Supreme Court would fix that problem. Rather than focusing on the usual shortlist of well-credentialed jurists who live along the Amtrak corridor between Boston and D.C., Trump cast a wider net to provide better representation of our constitutional culture. I have expressed my serious doubts about Mr. Trump’s vision of constitutional law, but so long as he sticks with this list, I remain cautiously optimistic.

Last June, Justice Antonin Scalia observed that for all the talk — and high praise — of diversity in the judiciary, the Supreme Court was lacking in a different type of diversity. All nine justices “studied at Harvard or Yale Law School,” he wrote. Eight of the justices “grew up in east- and west-coast States.” Only Chief Justice John Roberts (of Indiana) “hails from the vast expanse in-between.” Indeed, four out of the nine justices were “natives of New York City.” (My hometown of Staten Island was the only unrepresented borough.)

This coastal insularity was illustrated during Sonia Sotomayor’s confirmation hearing in 2009. The lifelong New Yorker was asked how she could “understand the everyday challenges of rural and small-town Americans and how Supreme Court decisions might affect their lives?” Sotomayor’s answer was revealing.

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“Yes, I live in New York City and it is a little different than other parts of the country, but I spend a lot of time in other parts of the country,” Sotomayor said. “I’ve visited a lot of states. I’ve stayed with people who do all types of work. I’ve lived on — not lived, I’ve visited and vacationed on farms. I’ve lived and vacationed in mountaintops. I’ve lived and vacationed in all sorts — not lived. I’m using the wrong word. I’ve visited all sorts of places.”

Mr. Trump’s list does not follow this template. First, his list of potential nominees did not all receive their law degrees in Cambridge, Mass., or New Haven, Conn. The University of Chicago — where Scalia was a professor — graduated Justices Allison Eid and Thomas Lee. Justice Don Willett studied at Duke; Judge Raymond Kethledge at Michigan; and Judge Thomas Hardiman at Georgetown. Several of the candidates did not graduate from the so-called Top 14 law schools, including Judge William Pryor, from Tulane; Justice David Stras, from the University of Kansas; and Judge Raymond Gruender, from Washington University in St. Louis.

#share#Trump’s choices should be celebrated, as these jurists managed to make it to the top of their fields without having the elite “privilege” — to use a term in common usage today — of a prestigious diploma. The education these judges received was in no way deficient, and perhaps in some ways superior, to those of their Ivy League colleagues. It brings to mind William F. Buckley Jr.’s famous confession that he would “sooner live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University.”

Trump did not limit his search to the usual inside-the-beltway favorites.

Second, Trump did not limit his search to the usual inside-the-beltway favorites. The list includes Steven Colloton (Iowa), Raymond Gruender (Missouri), Thomas Hardiman (Pennsylvania), Raymond Kethledge (Michigan), William Pryor (Alabama), Diane Sykes (Wisconsin), Allison Eid (Colorado), Joan Larsen (Michigan), Thomas Lee (Utah), David Stras (Minnesota), and Don Willett (Texas). All these judges have served on the bench within what Justice Scalia called that “vast expanse in-between.” 

Third, for the first time in a generation, not a single judge from the D.C. Circuit Court of Appeals — often called the second-highest court in the land — made the Supreme Court shortlist. This is a positive development. The judges on Trump’s list are less likely to view the great expanses of the United States beyond the Hudson River in the same way as that famous New Yorker cover. They are also less likely to be susceptible to the so-called Greenhouse Effect, the “judicial drift” caused by Beltway Fever. These justices will have the strongest immunity to the D.C. cocktail-hour scene, which tries to nudge judicial conservatives to the left.

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Fourth, this geographic diversity also instills a respect for the principles of federalism: Not all of the answers to our problems will come from the seat of the central government, many will come from the “laboratories of Democracy” in the several states. Particularly compelling is that five of the potential nominees currently serve on state supreme courts. We have not had a justice appointed from a state court since President Reagan plucked Sandra Day O’Connor from the Arizona Court of Appeals. These judges focus on interpreting their state constitutions — a task that is often separate and apart from following the rulings of the U.S. Supreme Court. These jurists are less likely to lose sight of the fact that states are free and able to provide additional constitutional protections beyond those of the federal government. They also implicitly understand the importance of the Tenth Amendment and state sovereignty. Further, judges who have had to stand for election will have a deeper appreciation for the role of the courts in our Republic.

#related#But I must temper my optimism with a note of caution: Mr. Trump stopped short of guaranteeing that he would pick someone from this list. In March, he unequivocally promised, “I will pick, 100 percent pick” from the list. Now, he would only say that these jurists will serve as a “as a guide to nominate our next” justice, and that the list was “representative of the kind of constitutional principles I value.” I have expressed my serious doubts about Mr. Trump’s vision of constitutional law, and this equivocal language leaves me doubting more. For now, I can only give it two cheers. If Mr. Trump wants the third cheer, he must convince us that this will not end up as a “If you like your justices, you can keep your justices” promise. This must be a promise to keep.

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