Court Battles

Trump eyeing second Supreme Court seat

Greg Nash

Talk is already heating up that President Trump could have a chance to appoint a second person to the Supreme Court.

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said this week that another opening could come as soon as this summer, and there have been rumors that Justice Anthony Kennedy, often a swing vote on the court, could retire soon.

Kennedy, 80, was nominated to the court by President Reagan.

{mosads}Whether Kennedy or one of the court’s other justices will retire is anyone’s guess, but experts in the legal community say Trump should be ready regardless.

A number of other names came up when Trump picked Neil Gorsuch to replace the late Antonin Scalia on the court.

Here’s a look at five people who could get the nod if there is another opening for Trump.

Raymond Kethledge

The judge on the Cincinnati-based 6th Circuit Court of Appeals was one of the names on Trump’s original list and appears to be an early favorite this time around.

At 50, the George W. Bush appointee is just a year older than the 49-year-old Gorsuch. Like the newest justice, he’s also a former Kennedy clerk.

Environmental issues could be a flash point.

Green groups have criticized Kethledge for ruling in 2012 that there is no private right of action for individuals to force state officials to comply with the Clean Air Act.

The Michigan Law graduate is also known for a 2014 decision in which he slammed the Equal Employment Opportunity Commission for trying to limit the ability of private employers to run credit checks on job applicants.

With Trump’s focus on cutting down the nation’s regulatory rulebook, liberal court watchers say the administration is likely looking for someone more critical of agency authority.

“This administration is looking for someone who will be on the court a long time and who will be a nod to Kennedy, but in ideological terms will help support this administration’s agenda,” said Michele Jawando, vice president of legal progress at the liberal think tank Center for American Progress.

William Pryor

The ultraconservative 11th Circuit Court of Appeals judge is a favorite of conservatives and definitely in the running.

Pryor, who was on Trump’s original list, was seen as a controversial choice last time around given his public criticisms of Roe v. Wade, the landmark ruling that established abortion rights.     

The 54-year-old Bush appointee reportedly called the 1973 decision the “worst abomination in the history of constitutional law.”

But because Republicans went nuclear to get Gorsuch confirmed and eliminated the minority’s ability to filibuster Supreme Court nominees, experts say the former Alabama attorney general now has a greater chance of being picked.

“One advantage Gorsuch had over Pryor was he had some chance of not being filibustered, but now they know they don’t have to worry about that,” said Ian Samuel, a Climenko Fellow and lecturer on law at Harvard Law School who clerked for Scalia. “Pryor could look a little more attractive. He still has to get a majority in the Senate, but there’s absolutely no reason to believe Pryor wouldn’t be in the mix.”

Paul Clement

The former U.S. solicitor general in the Bush administration is another possible choice. 

Though not a judge, Clement has argued numerous cases before the Supreme Court as an attorney.

He is best known for winning the case he argued on behalf of Hobby Lobby challenging the Affordable Care Act’s birth control mandate. In a 5-4 ruling, the court said the mandate requiring employer heathcare plans to cover the cost of contraception was overly burdensome under the Religious Freedom Restoration Act.

Clement, 50, is a former Scalia law clerk.

Brett Kavanaugh

The D.C. Circuit Court of Appeals judge wasn’t included in the original list of possible picks Trump drafted with the help of the Heritage Foundation, but he appears to be a viable candidate now.

He has risen in favor among conservative groups after issuing the court’s majority ruling in an opinion last year that found the structure of the Consumer Financial Protection Bureau unconstitutional.

Republicans have fought for years to overhaul the agency.

“The CFPB’s concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decision making and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency,” Kavanaugh wrote.

Before he was confirmed to the bench in 2006, Kavanaugh served five years in the White House as first associate counsel and then senior associate counsel to Bush. He later became the president’s assistant and staff secretary. 

At 52 years old, the former Kennedy clerk is another young candidate for the court.

Thomas Hardiman  

Hardiman, a respected conservative who sits on the Philadelphia-based 3rd Circuit U.S. Court of Appeals, was runner-up to Gorsuch. 

Trump’s sister, Judge Maryanne Trump Barry, who also sits on the 3rd Circuit, had reportedly recommended her brother choose Hardiman to fill Scalia’s seat.

If Trump is looking for a reliable conservative, the 51-year-old Massachusetts native seems to fit the bill, having weighed in on a number of hot-button issues important to Republicans, including gun rights.  

In 2013, he dissented from a decision in Drake v. Filko upholding a New Jersey carry law that requires residents to show a justifiable need to carry a gun in public in order to obtain a permit. 

Hardiman said the law violated the Second Amendment. Citing Supreme Court precedent, he said the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and “because the need for self-defense naturally exists both outside and inside the home, I would hold that the Second Amendment applies outside the home.” 

Other possible candidates

Though seen as less likely options, court watches say Judges Joan Larsen of the Michigan Supreme Court, Diane Sykes of the 7th Circuit Court of Appeals and Amul Thapar of the federal District Court for the Eastern District of Kentucky are also possible picks.

Trump nominated Thapar to fill a vacancy on the 6th Circuit Court of Appeals, but experts say Trump could tap him for the high court instead.

Tags Chuck Grassley

Most Popular

Load more


See all Video