Trump's SCOTUS picks: Liberals in conservative clothing?

Those of us who follow politics know the drill.  We see Supreme Court justices, appointed by Republican presidents, who arrive with the promise of bringing a conservative approach to the Court, only to end up voting like liberals.  David Souter (appointed by George H.W. Bush), Anthony Kennedy (a Ronald  Reagan appointment, although it should be remembered that he was Reagan's third choice, after Robert Bork and Douglas Ginsburg had their nominations withdrawn), and even John Roberts (appointed by George W. Bush) were appointed to the SCOTUS by Republican presidents and often voted more like liberals than conservatives.  Can you think of a single SCOTUS justice, appointed by a Democrat president, who surprised us and turned out to be (and vote like) a conservative?  Neither can I.

This may change.  If Donald Trump's announced list of potential SCOTUS justice picks is any indication, there appears to be a common thread running through the 21 names.

  • While there are a number of judges on the list who went to Harvard or Yale (as did many of President Obama's appointments), a number of others went to law school at places like Notre Dame, Marquette, the University of Georgia, and the University of Miami.
  • About half of Mr. Trump's candidates sit on state – not federal – Supreme Courts.
  • Almost all those who sit on federal appeals courts do so in the heartland.  The exception is Judge Margaret A. Ryan (see below).
  • Mr. Trump has credited two leading conservative policy groups – the Heritage Foundation and the Federalist Society – with helping to draw up his list.

While we do not know if any of President Trump's SCOTUS appointments will turn out to be more like Antonin Scalia than David Souter, we can gain insight by looking at some possible nominations that a President Trump would make.  Here are three interesting possibilities from the list.

  • William H. Pryor, Jr. of the United States Court of Appeals for the 11th Circuit, in Atlanta.  Is he a conservative?  He has called Roe v. Wade "the worst abomination of constitutional law in our history."  Could Judge Pryor turn out to be a liberal in conservative clothing?  Possibly, but he once ended a speech with a prayer: "Please, God, no more Souters."
  • Margaret A. Ryan of the United States Court of Appeals for the Armed Forces, in Washington, D.C.  Judge Ryan is a former active duty member of the United States Marine Corps (1988-1992) and later served as a Judge Advocate General (JAG) officer.  Judge Ryan was also  a law clerk for Judge Michael Luttig on the United States Court of Appeals for the Fourth Circuit and, later, for Justice Clarence Thomas on the United States Supreme Court.
  • Senator Mike Lee.  Sen. Lee is currently the junior U.S. senator from Utah.  He serves on the Senate Judiciary Committee.  He has previously served as an assistant U.S. attorney in Utah and as a Supreme Court clerk for Justice Samuel Alito.  An early Tea Party favorite, Lee came out of private practice to mount a successful primary challenge to incumbent three-term Republican senator Bob Bennett and then trounce his Democrat opponent (he got 62% of the vote) in the general election in 2010. He has received a 100% rating from the American Conservative Union and a 99% score from the Heritage Foundation.

Given the current age of the elder members of the SCOTUS (Justice Kennedy is 80, Justice Ginsburg is 83, and Justice Breyer is 78), it is easy to understand why so many on the left are worried about potential vacancies.  In addition to Justice Scalia'a seat (Scalia passed away one month shy of his 80th birthday), President Trump could be in a position to appoint three other justices to the Supreme Court.

We do not know for sure how President Trump will shape the Court.  And there is sure to be a bruising battle for confirmation of most, if not all, of them (although it will be interesting to see if Senate Majority Leader Mitch McConnell chooses to extend the "Reid Rule" – a simple majority vote for judicial appointments – to Supreme Court appointments).  But it is possible that President Trump will appoint justices who, for the first time in many years, turn out to be more conservative than expected.