There were plenty of people at the recent Federalist Society’s national lawyers convention who didn’t support Donald Trump. But there were hardly any who voted for Hillary Clinton.
So it was not surprising that the conservative legal activists who had gathered for their annual meeting had not looked to the future for inspiration but the past. Their theme was the legacy of Justice Antonin Scalia.
Still, any anxiety about Trump gave way to the realization that the electoral surprise meant they would have a role in choosing Scalia’s successor, and the mood brightened.
“We could have been here in mourning, in sackcloths and ashes, wondering what might become of the republic,” Sen. Ted Cruz (R-Tex.) told a packed ballroom. Instead, the attendees found themselves with a “historic opportunity” and, as he noted, circulated through the Mayflower Hotel with “résumés in your pockets.”
“This gathering may well be the single largest collection of individuals who are likely to serve in the new administration,” continued Cruz, a Federalist Society favorite. “If you look down the aisle at your friends and neighbors and colleagues, I have great confidence that we are collectively looking at scores of federal judges,” as well as Justice Department lawyers and future officials of every federal agency.
But it was the opening on the Supreme Court that dominated the event.
One attendee told Cruz he was disappointed that the presidential run had not ended in success, but wondered now if Cruz would be interested in the ninth seat.
Self-deprecation is not the 45-year-old senator’s forte.
“Thank you for that kind encouragement,” Cruz said solemnly. “What I will say is that history is long and can take unexpected paths.”
But Cruz is not on the list of 21 people from which Trump has said — repeatedly — he will make his choice. “Only from that list I’m going to pick, only,” Trump said recently. “We’re not going outside that list.”
Since it was developed in large part with the assistance of the Federalist Society and the conservative think tank Heritage Foundation, most in the conservative legal movement are happy with the potential choices. (Heritage official John G. Malcolm has lamented the omission of former Bush administration solicitor general Paul Clement and Judge Brett Kavanaugh from the U.S. Court of Appeals for the District of Columbia Circuit.)
In fact, no one from Washington is on the list, save for Sen. Mike Lee (R-Utah), and his rocky past with Trump — including voting for independent presidential candidate Evan McMullin instead of the GOP nominee — makes Lee’s candidacy unlikely.
Instead, the list is composed of federal judges and state supreme court justices from around the country. A solid number of them clerked for Scalia or another of the Supreme Court’s current conservatives, raising the possibility that a former clerk would for the first time sit with the justice for whom he or she once worked.
Who is on the shortlist? Who knows. But two names must be elevated, if for no other reason than Trump himself has mentioned them.
“We could have a Diane Sykes, or you could have a Bill Pryor, we have some fantastic people,” Trump said shortly after Scalia died, naming the kinds of judges a Republican president could nominate.
The selection of Judge William Pryor of the U.S. Court of Appeals for the 11th Circuit in Atlanta would be a sign that Trump does not fear a disruptive and contentious battle. Few people raise liberal hackles like the 54-year-old Pryor, who was a recess appointment of President George W. Bush.
Pryor, a former Alabama attorney general, has been an outspoken critic of gay rights and Roe v. Wade. He called the 1973 abortion rights decision the day “seven members of our highest court ripped the Constitution and ripped out the life of millions of unborn children.” At his Senate confirmation hearing, his refusal to back away from such remarks made him a hero to the right.
Pryor has a powerful advocate in his mentor, Sen. Jeff Sessions (R-Ala.), an early supporter of Trump and the president-elect’s choice to be attorney general. But Republicans might be looking for someone other than a white Catholic man.
Including Scalia, Republican presidents are responsible for six consecutive men joining the court, all of them Catholic except for Justice David Souter, and all of them white, except for Justice Clarence Thomas.
Sykes is a judge on the U.S. Court of Appeals for the 7th Circuit and a former justice on the Wisconsin Supreme Court. She, too, is a Federalist Society favorite, chosen a couple of years ago to interview Thomas at the group’s gala dinner.
Sykes would bring something to the court missing since the departure of Justice Sandra Day O’Connor: She has run for elected office. And she has a solidly conservative voting record, with a requisite defense of gun rights.
One drawback is that she would be 59 at the time of her nomination, and conservatives generally like their nominees to be younger. On the other hand, Justice Ruth Bader Ginsburg was 60 when confirmed, and she has served 23 years and counting.
Another woman who had a prominent role at the recent Federalist Society convention was Michigan Supreme Court Justice Joan Larsen. A former Scalia clerk — “When I write, I still think of him,” she said at a panel on Scalia’s writing ability — Larsen would be a fresh face. Perhaps too fresh for some. She was appointed to that court only last year, and there are concerns too little is known about her jurisprudence.
Conservatives live in fear of a nominee who does not turn out to be a strict conservative, such as the more moderate O’Connor and Justice Anthony M. Kennedy, or even liberal like Souter. “Please God, no more Souters” is a Pryor refrain that conservatives love.
Josh Blackman, a law professor at the South Texas College of Law Houston, interviewed convention attendees and opened up his FantasySCOTUS site to gauge interest in Trump’s choice.
Two other federal judges — Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit in Denver and Raymond Kethledge of the U.S. Court of Appeals for the 6th Circuit — are among the leaders. Both are former Kennedy clerks.
And Justice Don Willett of the Texas Supreme Court is also a favorite of the voters. Willett displays a libertarian streak in his rulings but is known mostly for his postings on Twitter, where he has more than 66,000 followers.
He tweets about the Constitution, the law, Chick-fil-A, Whataburger and his three children, known as the Wee Willetts.
He professed surprise to find himself on Trump’s list. Perhaps because of this haiku tweet:
Who would the Donald
Name to #SCOTUS? The mind reels
*weeps — can’t finish tweet*