University of Richmond law professor Carl Tobias is quoted in Politico characterizing Donald Trump’s list of putative Supreme Court “candidates” as “fairly notable people but more for their active politics than maybe their jurisprudence.” Tobias is not quoted as providing any evidence for this claim.
It’s not worth a great deal of time debating the makeup of Trump’s list. Like most of Trump’s policy statements, it won’t bind Trump should he ever be in a position to nominate a Supreme Court justice. It’s more of an olive branch to conservatives worried about the future of the court than a real short list for a vacancy. Trump’s actual list may be completely different if the opportunity ever presented itself.
I do think, however, that Professor Tobias’s statement does a great disservice to those judges who – through no fault, wish or desire of their own – ended up on Trump’s list. The overwhelming majority of the eleven judges on the list have had little to no involvement in elected politics (of the non-judicial election sort). Many are names that 99.9 percent of Americans have never heard of — jurists who have had distinguished careers in academia, public service and the judiciary
Take, for instance, the federal judges on the list. Steve Colloton, Tom Hardiman, Diane Sykes, Ray Kethledge, and Raymond Gruender were all appointed to the bench by George W. Bush after careers in private practice (Kethledge and Hardiman), as United States Attorneys (Colloton and Gruender) or as state court judges (Sykes). Bill Pryor, now on the Eleventh Circuit, served as the Attorney General of Alabama before he was recess appointed by President Bush after being filibustered by Senate Democrats. (He was later confirmed by the Senate). But Judge Pryor has hardly been a political activist from the bench. In fact, he was appointed by President Obama to serve on the U.S. Sentencing Commission, which you might think would not have happened if he were a conservative political activist.
Similarly, the state court judges on the list are not what you might think of as political hacks. Joan Larsen, a former law clerk to Justice Scalia, was a long-time law professor at University of Michigan, where she focused on constitutional criminal procedure. She was recently appointed as a justice on the Michigan Supreme Court. Utah Supreme Court Justice Tom Lee, brother of Senator Mike Lee, and Colorado Supreme Court Justice Allison Eid have similar biographies: Supreme Court clerk, law professor and state supreme court justice. Apart from serving in appointed positions in the Department of Justice (Lee was my successor in the Department of Justice’s Civil Division and Larsen served in the Office of Legal Counsel), which is well removed from electoral politics, there’s not a hint of politics about any of these distinguished jurists.
The one potential target for the “politics” criticism on the list is my pal Don Willett on the Texas Supreme Court. Thanks to social media, Don has adopted a slightly less ivory tower approach than the average state supreme court justice. It might be said that he’d benefit from a social media intervention. Much of his facebooking consists of dog and cat videos, and virtually all of it is tongue-in-cheek. To the extent he’s wandered into political observations of late, it has been to criticize Donald Trump. Texas justices are elected (after their initial appointment), and Don has successfully connected with voters by taking a lighthearted and self-deprecating approach to his public persona. His public statements about politics should, of course, be scrutinized, just like any other candidate. But should they disqualify him from consideration? Hardly.
Perhaps a Donald Trump short list will have one or all of these names on it. Perhaps it won’t. There are good reasons that each of these candidates might be considered by a Republican president – and political activism simply isn’t one of them.