In conversations with a host of conservative legal experts at this week’s Federalist Society convention in Washington, what emerged was a striking consensus of a two-horse race to replace the late Justice Antonin Scalia on the Supreme Court. According to these sources — many of whom have had discussions with President-Elect Donald Trump’s transition team and therefore requested anonymity — it will come down to either Diane Sykes or William “Bill” Pryor.
Both are federal appellate judges: Sykes, a Wisconsinite, serves on the Seventh Circuit Court, while Pryor, an Alabama native, serves on the Eleventh Circuit Court. Both were appointed by former President George W. Bush. And both are viewed by conservatives as strict originalists who carry no risk of a David Souter-like transformation once appointed to the high court.
It’s no coincidence that these are the two jurists Trump mentioned by name during a February primary debate in South Carolina. “We could have a Diane Sykes or you could have a Bill Pryor,” Trump said when asked about making Supreme Court appointments. “We have some fantastic people.”
It’s a win-win for Republicans if Trump does ultimately choose between these two, as both are immensely popular in the conservative legal community. That said, Sykes and Pryor — both of whom spoke on panels at the Federalist Society gathering — each have supporters currently making arguments on their behalf (and against the other) behind the scenes in Washington. The short versions:
– Pryor isn’t just regarded as a brilliant legal mind; he is viewed as the most rock-ribbed conservative of any potential Supreme Court appointee. His ideological mooring makes him hugely appealing to elements of the conservative movement who have felt betrayed by Chief Justice John Roberts and are looking for the next Republican nominee to be an absolute slam-dunk. Pryor would certainly be that: He famously once ended a prayer by saying, “Please, God, no more Souters.” But there’s a downside to Pryor’s staunch conservatism: He could prove exceedingly difficult to confirm. There’s a reason Bush used a recess appointment to get Pryor on the appellate court back in 2004: Senate Democrats initially refused to confirm him, horrified that he had, in their view, equated same-sex relations with bestiality (a charge disputed by some on the right, Ramesh included) and had separately called the Roe v. Wade decision “the worst abomination of constitutional law in our history.” Pryor stood by those comments during his hearings and was eventually confirmed in 2005. That unflinching approach, while attractive to conservatives, could make for an unnecessarily messy confirmation.
– Sykes is considered to be every bit as conservative as Pryor, but is less controversial and would therefore offer a much smoother confirmation process. She also is — quite obviously – a woman, and Republicans have been eager for decades to appoint a female Supreme Court justice. (The Harriet Miers fiasco still haunts many GOP establishment types.) Allies of Sykes say it would prove especially difficult for Democrats to oppose her: She’s a 58-year-old single mother who hails from the heartland. (She attended Marquette Law School, which, for Republicans, would represent a refreshing break from the procession of Ivy League-educated nominees for the high court.) While Sykes is widely viewed as the safer bet for breezy Senate confirmation, there are slight concerns about her divorce from conservative radio personality Charlie Sykes. The two are said to be on very good terms, but any marital difficulty — and the accompanying public records – can invite unwanted gossip and rumor-mongering.
As Trump continues to meet with conservative legal experts — including the Federalist Society’s Leonard Leo — we’ll update this space with any additional information we come across.
EDITOR’S NOTE: This post has been updated to clarify the year of Pryor’s recess appointment and confirmation.