Donald Trump took the unusual step Wednesday of releasing a list of 11 judges he would consider nominating to the Supreme Court if he is elected president, part of an ongoing effort to reassure doubtful conservatives that he would carry out their agenda in office.
Trump’s picks looked more like a wish list of the nation’s conservative legal elite than the product of a political revolutionary. The list garnered praise from many Republican leaders and activists, although some said it seemed too good to be true.
Most of the names were suggested by the conservative Heritage Foundation, but some also reflect Trump’s outsider mind-set. While every member of the current court studied law at either Harvard or Yale, most of Trump’s picks studied at schools such as Michigan, Northwestern and Tulane, with only one having attended Yale. Trump also selected a number of state supreme court judges instead of focusing only on federal courts. The list is heavy with Midwesterners, and all are white.
Five of the potential nominees are on state supreme courts: Allison Eid of Colorado, Thomas Lee of Utah, David Stras of Minnesota, Joan Larsen of Michigan and Don Willett of Texas. The rest serve on U.S. circuit courts of appeals: Thomas Hardiman of Pennsylvania on the 3rd, Raymond Kethledge of Michigan on the 6th, Diane Sykes of Wisconsin on the 7th, Steven Colloton of Iowa and Raymond Gruender of Missouri on the 8th and William Pryor Jr. of Alabama on the 11th.
Willett is nearly as prolific on Twitter as Trump and has written critically about the presumptive GOP nominee. He tweeted in June 2015: “Who would the Donald name to #SCOTUS? The mind reels. *weeps — can’t finish tweet.*” Soon after Trump named him Wednesday, Willett’s account went quiet.
Jonathan H. Adler, a law professor at Case Western Reserve University, said the surprisingly conventional choices should reassure conservatives.
“Everyone on the list is a sitting judge and, with the exception of one who has an amusing Twitter feed, there aren’t really any bomb-throwers,” Adler said. “They’re conservative, but not particularly controversial. It is interesting, though, how much this is an ‘outside of the Beltway’ list.”
While it’s highly unusual for a presidential candidate to commit to a list of potential appointees, it’s also unusual to have an opening on the high court during an election.
Following the death of Justice Antonin Scalia on Feb. 13, President Obama nominated U.S. Circuit Judge Merrick Garland to the court in mid-March. Garland is considered a moderate judge, but the Republican-dominated Senate has yet to hold a confirmation hearing because Republicans say they should wait until after the November election. Hillary Clinton, the Democratic front-runner, has encouraged senators to confirm Garland.
Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) called Trump’s choices “an impressive list of highly qualified jurists.”
Other conservatives were skeptical. “I am thrilled by this list,” John Yoo, a former Bush administration Justice Department official, wrote in the National Review on Wednesday. “But that being said, I cannot trust Trump to keep his word. He has already flip-flopped on so many issues, before, during, and after the primary campaign. How do we know he would not start wheeling and dealing on judicial appointments if he were to win the Oval Office?”
Late Wednesday night, Trump tweeted that his list of potential justices was well received and that “During the next number of weeks I may be adding to the list!”
The list quickly attracted criticism from liberals, who largely focused on three of the circuit judges: Pryor, Sykes and Colloton.
They pointed to quotes from Pryor calling the Roe v. Wade decision legalizing abortion nationwide the “worst abomination in the history of constitutional law.” Sykes voted in favor of a controversial voter-ID law in Wisconsin that is still tied up in the courts. Colloton served on the only appeals court panel that decided the contraceptive mandate in the Affordable Care Act impinged on the rights of religiously affiliated nonprofits.
“Donald Trump’s list of potential Supreme Court nominees are a woman’s worst nightmare,” said Ilyse Hogue, president of NARAL Pro-Choice America.
Nan Aron, president of the liberal Alliance for Justice Action Campaign, said the list is “the clearest demonstration yet of the enormous stakes in the coming election.”
“Taken together, the records of these potential Trump nominees reflect a radical-right ideology that threatens fundamental rights,” Aron said, “and that favors the powerful over everyone else, especially people from historically marginalized communities.”
Clinton campaign chairman John Podesta said in a statement: “Donald Trump . . . released a list of suggested Supreme Court nominees that includes no people of color, but does include a judge who upheld a law requiring doctors to use scare tactics to impede reproductive rights and another judge who equated homosexual sex to ‘bestiality,’ ‘pedophilia’ and ‘necrophilia.’ ”
Trump first promised to produce such a list in March, when then-rival Sen. Ted Cruz (R-Tex.) warned Republicans that Trump might appoint liberal judges to the court. At the time, Trump said if he was elected president, he would only pick from his list.
But the campaign gave the list a more nuanced label on Wednesday, describing it as “people he would consider as potential replacements for Justice Scalia.”
“The following list of potential Supreme Court justices is representative of the kind of constitutional principles I value and, as President, I plan to use this list as a guide to nominate our next United States Supreme Court Justices,” Trump said in a statement.