As soon as Justice Anthony Kennedy announced his retirement after 31 years on the Supreme Court, picking his replacement immediately became one of Donald Trump’s most important acts as president. Kennedy is a center-right figure who is solidly conservative on most business and First Amendment cases but strongly pro-gay rights and cautiously supportive of reproductive rights. His replacement is sure to be a more doctrinaire conservative along the lines of Neil Gorsuch, Trump’s first pick for the Court.
Unusually, Trump has been releasing shortlists of candidates he’d consider for the Court ever since the presidential campaign. His current list, issued in November 2017 in the aftermath of Gorsuch’s appointment, has 25 names. It’s largely a list of solidly conservative options who’d be on most Republican nominees’ shortlists for the Court.
Not all 25 are likely to make it very far in Trump’s vetting. Prediction markets can help us winnow down the list. The following nine people are listed on PredictIt as having the best odds of being tapped by Trump to replace the departing Kennedy. They are listed according to their ranking as of Wednesday at 9 pm Eastern.
Current position: Federal appellate judge (DC Circuit Court of Appeals)
Why Trump picked him: Brett Kavanaugh has about as long and high-profile a record in Republican legal circles as anyone on this list. A former clerk to Anthony Kennedy, as well as appellate judges Alex Kozinski and Walter Stapleton, he represented Cuban child Elian Gonzalez pro bono during the conservative battle to keep him from returning to Cuba, and was one of the George W. Bush campaign’s lawyers in the Florida recount.
Before that, though, Kavanaugh was a protegé of Kenneth Starr, whom he served both in the solicitor general’s office under George H.W. Bush and as independent counsel during the investigation into the Clinton family’s Whitewater real estate deal. He was a principal author of the Starr Report, which detailed Bill Clinton’s affair with Monica Lewinsky and misrepresentations of that affair in sworn testimony.
“As a prosecutor, Kavanaugh set a bracing literary standard (‘On all nine of those occasions, the President fondled and kissed her bare breasts…’),” the New Yorker’s Jeffrey Toobin recalled in 2012, “but his work as a judge may be even more startling.” Toobin cites Kavanaugh’s opinion on the DC Circuit when considering a constitutional challenge to the Affordable Care Act:
It’s hardly his only stridently conservative opinion on the DC Circuit. In a profile for Ozy, Daniel Malloy notes, “Kavanaugh this year declared that the Consumer Financial Protection Bureau is unconstitutional, given the agency’s independence and unitary structure, and he has voted repeatedly to slap back aggressive regulations from Barack Obama’s Environmental Protection Agency.”
At the same time, Kavanaugh knows how to do the DC song and dance of pretending not to believe what he clearly believes on key questions of jurisprudence. He told senators during his confirmation hearings that he’d respect precedent on abortion and declined to share his views on Roe v. Wade. But there’s little doubt that he’d be a doctrinaire conservative on the Supreme Court, and one with a strong belief in presidential power, similar to Samuel Alito.
Amy Coney Barrett
Current position: Federal appellate judge (Seventh Circuit Court of Appeals)
Why Trump picked her: Amy Coney Barrett, only 46, is relatively new to the bench; her first appointment came from Trump in 2017. She only got her commission last November. But Clarence Thomas was barely on the circuit court for a year when he was elevated to the Supreme Court, and there’s no reason Barrett couldn’t follow in his footsteps.
A clerk to conservative appellate Judge Laurence Silberman as well as Antonin Scalia, and a longtime professor at her alma mater Notre Dame Law School, Barrett’s confirmation hearings earned headlines due to a controversial line of questioning from Democratic Sens. Dick Durbin (IL) and Dianne Feinstein (CA), who asked her repeatedly about her Catholic faith. Durbin asked, “Do you consider yourself an orthodox Catholic?” while Feinstein commented, “When you read your speeches, the conclusion one draws is that the dogma lives loudly within you.”
Liberal groups, while not defending the precise questioning, highlighted some of her writing on questions of Catholic faith and constitutional interpretation as concerning, noting a piece she co-authored that rejected Justice William Brennan’s argument that Catholic judges should always hold the Constitution as more important than their religious faith. In her confirmation hearing for the Seventh Circuit, Barrett asserted that these were her co-author’s views, not her own.
Barrett also argued that the birth control benefit in the Affordable Care Act impinges on religious liberty, argues that cases like Roe v. Wade might not need to stand as precedents if future courts judge them to be wrongly decided, and has explicitly asserted that the “original public meaning” of the Constitution must be upheld, even though that “adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education.”
Barrett was ultimately confirmed with only three Democrats (Joe Manchin, Joe Donnelly, and Tim Kaine) voting in favor. But an elevation to the Supreme Court would force a much larger dispute about what, exactly, she believes the original meaning of the Constitution requires.
Current position: Federal appellate judge (Third Circuit Court of Appeals)
Why Trump picked him: Donald Trump’s been known to say that “the police in our country do not get respect.” That is assuredly not Thomas Hardiman’s fault.
On the Third Circuit, Hardiman has consistently sided with law enforcement against defendants and inmates. He ruled that a policy of strip-searching jail inmates didn’t violate the Fourth Amendment’s protections against unreasonable search (an opinion the Supreme Court upheld). He’s also written, in dissent, that the First Amendment does not give citizens the right to tape police — something with which every state in the union currently disagrees.
Hardiman’s pre-judicial career is full of the kinds of things liberals and Democrats don’t like: He donated to Republican candidates before being appointed to the bench (something that is neither illegal nor, to most legal experts, a big deal), and he represented plenty of political clients and political cases while he was in private practice. Most of this is insignificant: Just like it’s a defense lawyer’s job to defend murderers, it’s a civil lawyer’s job to defend companies accused of discrimination.
But it’s ironic that one of Hardiman’s most high-profile cases was a housing discrimination suit against a company accused of conspiring to keep out low-income clients — given that the president who might appoint him to the Supreme Court, early in his own career, settled a housing discrimination suit of his own against the federal government.
Perhaps most relevant to Hardiman’s chances, though, is that he was reportedly Trump’s second choice after Neil Gorsuch to replace Antonin Scalia. Despite his conservative record, grassroots right-wing activists freaked out when his name was floated, arguing he could be a stealth liberal (the evidence for this was shockingly weak). Perhaps, then, second time’s the charm?
Current position: Federal appellate judge (Sixth Circuit)
Why Trump picked him: Thapar was a US attorney turned district court judge appointed by George W. Bush when Trump first floated him as a Supreme Court candidate in September 2016. But district court judges are almost never elevated directly to the Supreme Court (the last person to make that jump was Edward Terry Sanford in 1923), and so nominating him for a circuit court was a natural stepping stone for an eventual Thapar Supreme Court bid.
Brian Fitzpatrick of Vanderbilt Law, who researches federal courts, told Bloomberg BNA that Thapar was ”very Scalia-like and Thomas-like” in his jurisprudence.