I’m sure everyone will be very surprised to know that Trump’s shortlist of SCOTUS candidates is not exactly everything we’d like to see in a replacement for Kennedy. Or anything we’d like to see in a replacement for Kennedy. But there are some really scary options on that list.
Like the guy in that picture, Bill Pryor. I’ll get to him.
Quite a few of the potential candidates have fairly minimal public histories of jurisprudence in general and contentious rulings in particular. That’s in part because quite a few of the potential candidates are very young and have only been recently appointed to roles in the US Court of Appeals or State Supreme Courts. Patrick Wyrick, for example, on the Supreme Court of Oklahoma, was born in 1981!
But we don’t need a paper trail to know the nature of these potential appointees. Trump himself has stated that the Federalist Society and the Heritage Foundation essentially provided him the names on his list. In a total coincidence, an awful lot of them are Federalist Society members. Weird, huh?
Let’s hit some highlights (lowlights):
- Charles Canady (b. 1954). Supreme Court of Florida. Former Democrat, was elected to the state House. Accepted money from the party for his re-election campaign, then swapped parties to Republican, where he’s been ever since (and no, of course he didn’t pay the Democratic Party back, silly!). Later elected to the US House of Representatives, where he coined the term “partial-birth abortion” in order to help craft the Partial-Birth Abortion Ban Act of 1995, in case you ever wondered where THAT piece of Orwellian Newspeak came from. One of the managers of the Clinton impeachment proceedings.
- Raymond Gruender (b. 1963). US Court of Appeals, Eighth Circuit. Gruender has an impressively consistent history of authoring anti-women rulings. For example, finding the Pregnancy Discrimination Act of 1978 shouldn’t give women the right to demand insurance coverage for contraceptives used solely for birth control (because, you see, that’s not discriminating against pregnant women). And writing in one of the (many) Planned Parenthood cases that a law demanding doctors tell patients that “abortion will terminate the life of a whole, separate, unique, living human being” doesn’t unduly burden women, doesn’t impact doctors’ First Amendment rights, and is in fact plainly constitutional.
- Thomas Hardiman (b. 1965). US Court of Appeals, Third Circuit. Does a major case involve police authority or pit religious rights against… well, anything else? Then it’s safe to say you can predict his decision. My absolute favorite is the ruling in favor of parents who came to their kid's (public) kindergarten show-and-tell to read the Bible to the class; he concluded that the school’s efforts to tell them to stop “plainly constituted” discrimination, and that the “desire to protect young children from potentially influential speech” was irrelevant in the face of the family's religious rights. Fun times.
- Brett Kavanaugh (b. 1965). US Court of Appeals, DC Circuit. Principal author of the Starr Report (yes, that Starr Report, Clinton fans!). Barely got his current confirmation over objections to his long history of naked partisanship. Dick Durban famously called him the “Forrest Gump of Republican politics.” Outside of a court ruling, wrote a piece about his philosophy of statutory interpretation: that judges should determine their “best reading” of unclear law based on their opinion about how the law should work. Apparently, judicical activism falls under IOKIYAR.
- Mike Lee (b. 1971). Senator (R-UT). He’s from the Republican Party’s libertarian wing, and so actually occasionally votes against the party, but mostly just because even the Republicans sometimes want government to do something, and he’d rather it didn’t. But more than anything, he’s staunchly anti-environment. In a 2016 speaking engagement, declared that it “has long been obvious that the Democratic Party's assertion that the science of climate change is ‘settled’ is little more than a cheap public-relations ploy masquerading as a monopoly on scientific knowledge.” He’s tried on several occasions to gut the EPA, and was the final secret hold on the federal assistance package for the Flint, Michigan water crisis (and only withdrew his hold after his identity was leaked to the press).
- Bill Pryor (b. 1962). US Court of Appeals, Eleventh Circuit. There’s so much to condemn here. Let’s just go with Pelphrey v Cobb County, where he found that prayers can open government commissions as long as they aren’t intended to proselytize. Actually, let’s NOT just go with that, because he also wrote that Roe v Wade is the “worst abomination in the history of constitutional law.” And let’s not go with just that either, because he wrote an amicus brief in Lawrence v Texas arguing that a right to consensual sodomy would invariably require equal rights to “prostitution, adultery, necrophilia, bestiality, incest, and pedophilia.” Trump is a really big fan of Pryor and suggested several times during the election campaign that he might appoint him to the Supreme Court.
- Amul Thapar (b. 1969). US Court of Appeals, Sixth Circuit. After Pryor, just about anyone will look good. But Thapar is probably best known for the case where a group of protesters broke into the Y-12 National Security Complex. You may remember the 84-year-old nun. Thapar kept them all jailed up through sentencing (and threw the book at them) because, after all, terrorists by definition cannot be safely released! Furthermore, he explicitly claimed that their continued judicial detention was a deterrent for other activists, an argument which I’m sure has no relationship at all to current events.
- Timothy Tymkovich (b. 1956). US Court of Appeals, Tenth Circuit. As Solicitor General of Colorado, was on the wrong side of Romer v Evans. Wrote the Tenth Circuit’s opinion in the Hobby Lobby case. I’ll let you guess the details of that opinion. Has opined that Heller should make felon-in-possession laws, like all forms of gun control, unconstitutional.
So, yeah. Sober and impartial jurists, each and every one. That’s probably a little under half the list. Maybe some of the rest won’t be so bad? I mean, it’s just the same pool they got Gorsuch from…
Oh. Never mind.
Let’s do what we can to convince Senate Democrats to stand up to whichever of these people Trump decides should misshape the next two-to-four decades of American law.