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President Trump Expands Supreme Court List - Where It Stands Now

by Alexander J. Segal on Dec. 07, 2017

Immigration Immigration  Deportation Immigration  Visa 

Summary: On November 17, 2017, the White House Office of the Press Secretary announced that President Donald Trump has added five names to his “Supreme Court List.” President Trump has pledged to select a name from his Supreme Court list in the event that he has to fill a new vacancy.

immigration attorney nycPRESIDENT TRUMP EXPANDS SUPREME COURT LIST TO 25

On November 17, 2017, the White House Office of the Press Secretary announced that President Donald Trump has added five names to his “Supreme Court List” [PDF version]. President Trump has pledged to select a name from his Supreme Court list in the event that he has to fill a new vacancy [see blog]. The addition of five new candidates brings the number of individuals on the list to 25. In this post, we will examine the list as it stands today and examine the new additions in some detail.

THE FIVE NEW ADDITIONS

In this section, we will examine each of the five additions to the Supreme Court list.

1. AMY COMEY BARRETT (JUDGE OF THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT)

President Trump nominated now-Judge Barrett to the Seventh Circuit in May 2017. She was confirmed by the Senate in October by a vote of 55-43. Judge Barrett faced a noticeably contentious confirmation hearing even by recent standards, with multiple Democratic Senators suggesting that she was incapable of being an impartial jurist because of the nature of her Catholic faith.

Prior to being confirmed to the Seventh Circuit, Judge Barrett was a law professor at Notre Dame Law School. Judge Barrett clerked for Justice Antonin Scalia of the Supreme Court of the United States and Judge Lawrence H. Silberman of the United States Court of Appeals for the District of Columbia Circuit. She is a graduate of Notre Dame Law School.

2. BRITT C. GRANT (JUSTICE OF THE SUPREME COURT OF GEORGIA)

Justice Grant was appointed to the Supreme Court of Georgia in 2017. Prior to becoming a judge, she served as the Solicitor General of the State of Georgia and was in private practice. Justice Grant served as a law clerk to Judge Brett M. Kavanaugh of the United States Court of Appeals for the District of Columbia Circuit, who incidentally is also one of President Trump's additions to the Supreme Court list. She is a graduate of Stanford Law School.

3. BRETT M. KAVANAUGH (JUDGE OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT)

Judge Kavanaugh was nominated to the D.C. Circuit by President George W. Bush in 2006. He was confirmed by the Senate by a vote of 57-36 that same year. Judge Kavanaugh had served as a lawyer in various capacities in the Bush Administration after having been in private practice. Judge Kavanaugh served as a law clerk to Justice Anthony Kennedy of the Supreme Court of the United States, Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, and Judge Walter K. Stapleton of the United States Court of Appeals for the Third Circuit. He is a graduate of Yale Law School.

4. KEVIN C. NEWSOM (JUDGE OF THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT)

Judge Newsom was appointed by President Trump to the Eleventh Circuit and confirmed by the Senate in August by a vote of 66-31. We discussed the process in brief in a previous blog post [see blog]. Judge Newsom had previously served as Solicitor General of the State of Alabama and been in private practice. He was a clerk to Justice David Souter of the Supreme Court of the United States and Judge Diarmuid F. O'Scannlain of the United States Court of Appeals for the Ninth Circuit. He is a graduate of Harvard Law School.

5. PATRICK WYRICK (JUSTICE OF THE SUPREME COURT OF OKLAHOMA)

Justice Wyrick was appointed to the Supreme Court of Oklahoma in 2017. Prior to his appointment, he served as Solicitor General of the State of Oklahoma. He served as law clerk to Judge James H. Payne of the United States District Courts for the Eastern and Northern Districts of Oklahoma. Justice Wyrick is a graduate of Oklahoma School of Law. Notably, Justice Wyrick is the youngest individual on President Trump's Supreme Court list at only 36 years of age.

THE SUPREME COURT LIST AS IT STANDS NOW

In this section, we will list the individuals on the Supreme Court list. For your convenience, we will organize the list by the type of service in which each individual is currently engaged.

ALREADY CONFIRMED TO THE SUPREME COURT

- Neil M. Gorsuch, Associate Justice of the United States Supreme Court

Justice Gorsuch was nominated by President Trump from the previous version of the list to the Supreme Court. He was confirmed by the Senate in April and has already begun his tenure.

FEDERAL APPELLATE JUDGES

- Amy Comey Barrett, United States Court of Appeals for the Seventh Circuit*
- Stephen Colloton, United States Court of Appeals for the Eighth Circuit
- Allison H. Eid, United States Court of Appeals for the Tenth Circuit*
- Raymond Gruender, United States Court of Appeals for the Eighth Circuit
- Thomas Hardiman, United States Court of Appeals for the Third Circuit
- Brett M. Kavanaugh, United States District Court for the District of Columbia
- Raymond Ketherledge, United States Court of Appeals for the Sixth Circuit
- Joan Larsen, United States Court of Appeals for the Sixth Circuit*
- Judge Kevin Newsom, United States Court of Appeals for the Eleventh Circuit*
- William Pryor, United States Court of Appeals for the Eleventh Circuit
- Diane Sykes, United States Court of Appeals for the Seventh Circuit
- Amul Thapar, United States Court of Appeals for the Sixth Circuit*
- Timothy Tymkovich, United States Court of Appeals for the Tenth Circuit

(Asterisk denotes judge who was nominated to circuit court by President Trump)

Judges Hardiman, Pryor, Sykes, and Thapar were reported to be four of the six individuals interviewed by President Trump for the Supreme Court vacancy that ultimately went to Justice Gorsuch. It is worth noting that Judge Thapar was not yet an appellate judge at the time of his interview.

Judges Kavanaugh and Ketherledge are considered by some to be favorites for an eventual vacancy due in part to the fact that they clerked for Justice Kennedy.

Judges Eid and Larsen may be worth watching for the next vacancy now that they have gone through the Federal confirmation process for the first time (they were State court judges at the time of the previous vacancy). Judge Eid, in fact, filled the vacancy on the Tenth Circuit created by the confirmation of Justice Gorsuch to the Supreme Court.
Judge Newsom is the youngest of the Federal appellate judges on the list at 44 years of age.

CURRENT NOMINEES TO FEDERAL APPELLATE COURTS

- David Stras, Currently: Minnesota Supreme Court; Nominated to: United States Court of Appeals for the Eighth Circuit
- Don Willett, Currently: Texas Supreme Court; Nominated to United States Court of Appeals for the Fifth Circuit

Justice Stras of the Minnesota Supreme Court has been nominated to the Eighth Circuit. His nomination had been delayed because Senator Al Franken of Minnesota had refused to return his “blue slip” on Justice Stras's nomination, a privilege afforded to home state senators where the seat is situated. In refusing to return his blue slip, Senator Franken cited to the fact that Stras had clerked for Supreme Court Justice Clarence Thomas and has said favorable things about former Justice Antonin Scalia [PDF version]. However, on November 17, 2017, Senator Charles Grassley, Chairman of the Senate Judiciary Committee, opted to proceed with Justice Stras's hearings notwithstanding Senator Franken's objections.[1]

Justice Willett of the Texas Supreme Court has been nominated to the Fifth Circuit and is expected to be confirmed shortly. He was the only State court judge among the six individuals interviewed by President Trump for the vacancy that went to Justice Gorsuch. Accordingly, now that he will have gone through the Senate confirmation process, he is certainly a name to watch if another vacancy occurs under President Trump. Senator Ted Cruz of Texas is noted to have strongly supported Willett's selection for one of the two Texas vacancies on the Fifth Circuit.

ADMINISTRATIVE COURT JUDGES

- Margaret A. Ryan, United States Court of Appeals for the Armed Forces

Judge Ryan is an administrative judge for the top military court. In addition to being a veteran, she clerked for Justice Clarence Thomas of the Supreme Court.

STATE COURT JUDGES

- Keith Blackwell, Supreme Court of Georgia
- Charles Canady, Supreme Court of Florida
- Thomas Lee, Supreme Court of Utah
- Edward Mansfield, Supreme Court of Iowa

President Trump's original list contained a notable number of State court judges but, as we have noted, many of those individuals have since been confirmed to Federal appellate courts or have pending nominations. Don Willett was reportedly the only State court judge to ultimately be interviewed for the previous vacancy. The last time an individual currently serving on a State court was nominated to the Supreme Court was in 1981, when President Ronald Reagan nominated Sandra Day O'Connor.

Thomas Lee is notable for being the brother of Senator Mike Lee of Utah, who is also on the Supreme Court list. He is also the son of Rex Lee, who served as Solicitor General under President Reagan. He is well-regarded in national legal circles and may be a proverbial dark horse candidate to watch in the event that President Trump has another vacancy to fill.

UNITED STATES SENATORS

- Mike Lee, United States Senator from Utah

Senator Mike Lee of Utah is the only elected official on President Trump's Supreme Court list. He is known for being among the most conservative members of the U.S. Senate, along with Senator Ted Cruz of Texas. Senator Lee served as a law clerk for Justice Samuel Alito of the Supreme Court and previously for Justice Alito when he was a Judge on the United States Court of Appeals for the Third Circuit. It is worth noting that Senator Lee was selected for President Trump's list during the campaign despite the fact that he was one of the few Republican senators to neither endorse nor ultimately vote for now-President Trump in the election.

FORMER STATE COURT JUDGES

- Robert Young

Robert Young was added to the list while he was on the Supreme Court of Michigan. He has since resigned his position and is planning to run for the United States Senate in Michigan in 2018.

CONCLUSION

It is unclear whether another Supreme Court vacancy will occur under President Trump. Furthermore, the upcoming 2018 mid-term elections may complicate the selection process in the event that one does occur.

Although a surprise is possible, the recent history of Supreme Court nominations and the composition of President Trump's list suggests that his nominee will most likely come from the Federal appellate judges on the list. As we noted, the last state court judge to be nominated was Sandra Day O'Connor in 1981. Since then, every nominee has been a Federal appellate judge except for the failed nomination of then-White House Counsel Harriet Miers in 2006 and the successful nomination of then-U.S. Solicitor General Elena Kagan in 2010.

If a vacancy occurs, we will provide further analysis at that time. Please continue to follow the blog for updates on President Trump's Supreme Court lists and judicial nominees in general.

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1. Kevin Freking. “Grassley alters Senate policy for 2 judicial nominees.” ABC News. Nov. 17, 2017. abcnews.go.com

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