President Donald Trump recently announced that by Sept. 1 he would release “a new list” of conservative Supreme Court nominees, “which may include some, or many of those already on the list.”
If presented with the opportunity to nominate someone to fill a vacancy on the high court, Trump added, he would “only choose” from this new list.”
This is an important development, since Trump’s original list was a significant factor in his 2016 election.
Some have suggested that the president should prune his current list and not add any new names, while the long knives are out for other short-listers (see, for example, here) as the jockeying begins in earnest.
Shortly after the sudden passing of Justice Antonin Scalia, one of us (John Malcolm) wrote a commentary titled “The Next Supreme Court Justice” offering a nonexclusive list of eight qualified candidates who represented “the kind of highly qualified, principled individuals the new president [who turned out to be Trump] should consider—after a thorough review of their backgrounds, records, legal acumen, judicial philosophies, and intestinal fortitude—for nomination to the Supreme Court.”
These potential nominees included then-Judge Brett Kavanaugh (now on the Supreme Court), Judge Bill Pryor, Judge Diane Sykes, Judge Raymond Gruender, Judge Steve Colloton, Judge Don Willett, Sen. Mike Lee, R-Utah, and Paul Clement.
President Trump was kind enough to credit The Heritage Foundation, among others, with helping to inform his thinking on who to include on his own list.
John Malcolm stands by the names on his original list, although, sadly, the moment may have passed for a couple of them. He also stands by the one name that did not make it on to the president’s consolidated list—Clement—and we hope the president adds him to the updated list.
Many of the names on the president’s current list are outstanding, and they deserve to remain on the list. Here are a few of these outstanding individuals whose credentials look, if anything, even better now than when they were first put on the list.
With respect to the names below, we begin with the U.S. Court of Appeals for the District of Columbia Circuit, followed by the other circuits in numerical order. For circuits with multiple candidates for the high court, we have listed them alphabetically.
Judge, U.S. Court of Appeals for the 3rd Circuit (Pennsylvania)Age: 55Education: University of Notre Dame; Georgetown University Law CenterClerkships: None
Judge Tom Hardiman was widely reported to be a finalist for the vacancies that ultimately were filled by Neil Gorsuch and Brett Kavanaugh. In addition to a solid record of judicial service, Hardiman has a compelling personal story—he was the first in his family to graduate from college and he drove a taxi to support himself during college and law school.
Before becoming a judge, Hardiman worked in private practice at prestigious law firms in Pittsburgh and Washington, D.C. While in private practice, he represented (on a pro bono basis) and successfully defended Allegheny County, Pennsylvania, against a lawsuit filed by a group of atheists who objected to the county’s display of a Ten Commandments plaque on the side of the county courthouse.
In his 17 years on the bench (three of them on the district court), Hardiman has written over 800 opinions, including noteworthy ones dealing with the Second Amendment, prisoner’s rights, and religious freedom.
In Drake v. Filko (2013), Hardiman dissented from the court’s ruling upholding a New Jersey law requiring those seeking a permit to carry a handgun to demonstrate a “justifiable need.” He argued that under the Supreme Court’s 2008 opinion in District of Columbia v. Heller, the Second Amendment extends beyond the home and encompasses an inherent right to self-defense.
Hardiman’s opinion in this case was cited recently by Justice Clarence Thomas in his dissent from denial of certiorari in Rogers v. Grewal (2020). Hardiman has expressed strong views on the Second Amendment in other cases too (see here).
Regarding religious liberty, Hardiman dissented in Busch v. Marple Newtown School District (2009), arguing that an evangelical Christian mother should not have been denied the opportunity to read from the Bible during a show-and-tell session at her child’s kindergarten.
And last year, in Northeast Pennsylvania Freethought v. County of Lackawanna, Hardiman wrote the majority opinion in this important First Amendment case, concluding that a transit system policy of excluding religious messages constitutes unconstitutional viewpoint discrimination, and expressing disagreement with a D.C. Circuit opinion reaching the opposite result in a similar case.
Citing the Declaration of Independence, Hardiman stated:
Religion is not only a subject. It’s a worldview through which believers see countless issues. It was so for our Nation’s founders, whose moral thesis changed the world and conceived a new birth of freedom in the United States: ‘that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’
Also last year, the Supreme Court affirmed an en banc decision that Hardiman wrote in Rotkiske v. Klemm, a case involving the Fair Debt Collection Practices Act. And this year, in U.S. v. Thuraissigiam, Justice Samuel Alito cited with approval Hardiman’s separate opinion in Castro v. United States Dep’t of Homeland Sec. (2016).
You may listen to an interview with Hardiman on the podcast “SCOTUS 101” here.
Judge, U.S. Court of Appeals for the 6th Circuit (Michigan)Age: 53Education: University of Michigan; University of Michigan Law SchoolClerkships: Ralph Guy Jr. (6th Circuit); Anthony Kennedy (Supreme Court)
Prior to joining the bench, Judge Raymond Kethledge served as counsel to then-Sen. Spencer Abraham, R-Mich., on the Senate Judiciary Committee and spent several years in private practice and as in-house counsel at Ford Motor Co.
After President George W. Bush nominated Kethledge to the 6th Circuit in 2006, his confirmation was delayed for nearly two years while both of Michigan’s Democratic senators pressed Bush to nominate their preferred candidate to fill a second vacancy on that court. After Bush agreed, the Senate confirmed Kethledge in 2008 by a voice vote without opposition.
During his time on the bench, Kethledge has garnered attention for his excellent writing ability and his commitment to textualism, as demonstrated by his opinions in everything from auto insurance cases to criminal sentencing cases.
Kethledge hasn’t hesitated to call out government agencies and officials, such as the IRS and Department of Justice, the Department of Labor, and the Equal Employment Opportunity Commission, for violating citizens’ rights or advancing absurd arguments. In the Labor Department case, which involved a church and its parishioners, he said:
What is perhaps most troubling about the Department’s position in this case, however, is the conceit of unlimited agency power that lies behind it. The power of a federal agency is no more than worldly. The Department should tend to what is Caesar’s, and leave the rest alone.
To that end, Kethledge has been a critic of the much-maligned Chevrondoctrine from both the bench and elsewhere. In a Vanderbilt Law Review article, he also rejected reliance on legislative history and stated that a judge’s role in both statutory and constitutional interpretation is to apply “the meaning that the citizens bound by the law would have ascribed to it at the time it was approved.”
Although Kethledge has written many notable opinions, he also has made clear his outlook on life and judicial philosophy elsewhere. In 2017, he co-authored a book on leadership encouraging those faced with tough decisions to act with clarity and conviction even in the face of strong criticism.
That’s exactly what’s required of any judge, but especially a Supreme Court Justice: Faithfully applying the law as written to any given case, even in the face of strong criticism. Kethledge repeatedly has shown he is up to the task.
Judge, U.S. Court of Appeals for the 6th Circuit (Michigan)Age: 51Education: Boston College; University of California, Berkeley LawClerkships: Arthur Spiegel (Southern District of Ohio); Nathaniel Jones (6th Circuit)
Judge Amul Thapar was Trump’s second judicial nominee following his appointment of Neil Gorsuch to the Supreme Court. Thapar has close ties to Senate Majority Leader Mitch McConnell, R-Ky., and is rumored to have been interviewed by Trump for the Supreme Court seats that ultimately went to Gorsuch and Kavanaugh.
Before joining the 6th Circuit, Thapar was no stranger to the courtroom, having spent nearly a decade as a district court judge, serving as an assistant U.S. attorney in both the District of Columbia and Ohio, and serving as U.S. attorney for the Eastern District of Kentucky. He also worked in private practice and served as general counsel for a company.
Thapar is a committed originalist. He taught a class at the University of Virginia Law School on “Originalism in Theory and Practice: Justices Scalia and Thomas” and published an article in the Yale Law Journal (“Fidelity & Construction”), in which he and his co-author wrote: “Judges take an oath to uphold the Constitution, not to satisfy commentators.”
Thapar echoed this view in a speech delivered at a Heritage Foundation-sponsored symposium that subsequently was re-printed in the Catholic University Law Review (“Smith, Scalia, and Originalism”) in which he said that “the line dividing courts and legislatures must be grounded in the original public meaning of the specific text of the Constitution.” Thapar’s commitment to originalism is also evident in many of his opinions (see here and here).