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Trump's Supreme Court List Might Reassure Conservatives, But Leaves Off Big Names

Likely Republican presidential nominee Donald Trump speaks during a rally in Eugene, Ore.
Ted S. Warren
Likely Republican presidential nominee Donald Trump speaks during a rally in Eugene, Ore.

Donald Trump released a list of 11 judges Wednesday he said he would consider for nomination to the U.S. Supreme Court if elected president. The move was seen as an effort to assuage Republican suspicions that he would not choose genuine conservatives to fill Supreme Court vacancies, one of which exists right now.

Trump did not pledge to name any of the 11 judges on the list to the Supreme Court seat of the late justice Antonin Scalia. Instead, he said he planned to use it as a "guide" for filling not just the Scalia seat but potentially as many as three other seats that could realistically come open during the next president's tenure. Three of the current justices are in their late 70s and early 80s.

The list proved Trump's media mastery once again. He got the headlines, but he did not commit to actually naming any of the judges on the list to the nation's highest court.

Reaction was predictably polarized. Progressive groups call the judges on the list "extremists." Nan Aron, president of the liberal Alliance for Justice, said the list included "some of the most extreme conservatives on the federal bench today," judges who, if named to the high court, would do "terrible damage to liberties and protections most Americans now take for granted." Ilyse Hogue, president of NARAL Pro-Choice America, called the list "a woman's worst nightmare."

White House Press Secretary Josh Ernest said, "I would be surprised if there are any Democrats who would describe those individuals as 'consensus nominees,'" the words Republicans once used to describe President Obama's nominee to the court — Merrick Garland. The Garland nomination has been in limbo for months now, because Senate Republicans have refused to hold a hearing on it.

In contrast, conservative activists and Senate Republicans welcomed the Trump list warmly. Carrie Severino, of the conservative Judicial Crisis Network, said the judges on the list "share in common a record of putting the law and the Constitution ahead of their political preferences." Sen. Charles Grassley, the chairman of the Senate Judiciary Committee, expressed admiration for some on the list.

The Trump list includes six federal judges, all very conservative jurists appointed to federal appeals courts by President George W. Bush, and five conservative state Supreme Court justices. The federal judges are: Steven Colloton of Iowa, Raymond Gruender of Missouri, Thomas Hardiman of Pennsylvania, Raymond Kathledge of Michigan, William Pryor of Alabama, and Diane Sykes of Wisconsin. The five state Supreme Court justices are: Alison Eid of Colorado, Joan Larsen of Michigan, Thomas Lee of Utah, David Stras of Minnesota, and Don Willet of Texas.

What is surprising about the list are the names not on it.

Among them: Brett Kavanaugh, a very conservative and respected judge on the U.S. Court of Appeals for the District of Columbia, the court that Scalia served on before being elevated to the Supreme Court; Judge Jeffrey Sutton, a beloved former Scalia clerk, now a highly respected conservative judge on the U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati. (Sutton was the author of two controversial opinions, one in which he upheld Obamacare based on previous Supreme Court rulings, and the other, upholding same-sex marriage laws.); Lastly, not on the list is Paul Clement, who served as the Bush administration's chief advocate in the Supreme Court and who has become the go-to lawyer for conservative causes in the High Court — causes ranging from the attack on Obamacare to the attack on the federal birth-control mandate because of religious objections.

For the most part, the names that are on the Trump list are not household names, not even in legal households. Some were controversial when they were nominated to the federal appeals courts they now serve on.

For example, William Pryor at his confirmation hearing said he personally viewed Roe v. Wade, the Supreme Court's 1973 abortion decision as "the worst abomination in the history of Constitutional law." He also drew both praise and opprobrium when, as state attorney general, he helped force Alabama Chief Justice Roy Moore off the state Supreme Court after Moore refused to obey a court order to remove from the courthouse a monument to the Ten Commandments.

Not all the names on the list are Trump supporters, either. Judges, of course, are not supposed to publicly support any political candidates. That said, Judge Diane Sykes, a federal appeals court judge from the Midwest, was previously married to Wisconsin conservative talk show host Charlie Sykes, famous for his opposition to Trump, #NeverTrump.

And Texas Supreme Court Justice Don Willet, an inveterate tweeter, has mocked the presumptive GOP nominee, on Twitter. For example, he tweeted, "We will rebuild the Death Star. It'll be amazing. Believe me, and the rebels will pay for it," a riff on Trump's pledge to build a wall and have Mexico pay for it.

Did we mention that he's quite the tweeter?

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.

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