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Trump Names 11 SCOTUS Picks, Bypassing Big Law
http://www.nationallawjournal.com/id=1202757984757/Trump-Names-11-SCOTUS-Picks-Bypassing-Big-Law?mcode=0&curindex=0&curpage=ALL
The Republican presidential contender identifies 11 state and federal judges, but no litigators.
Marcia Coyle, The National Law Journal
May 18, 2016
Republican presidential candidate Donald Trump gestures while speaking to the press in New York City, after his five-state super Tuesday win. April 27 2016.
Republican presidential candidate Donald Trump gestures while speaking to the press in New York City, after his five-state super Tuesday win. April 27 2016.
Presumptive Republican Party presidential nominee Donald Trump’s list for potential U.S. Supreme Court nominees is heavy on federal appellate judges and former clerks for conservative justices and light on big names in politics and private practice.
Trump’s list of 11 potential nominees doesn’t include several conservative judges who have been on Supreme Court watch lists in the past, including U.S. Court of Appeals for the D.C. Circuit Judges Brett Kavanaugh and Janice Rogers Brown, Sixth Circuit Judge Jeffrey Sutton and Fifth Circuit Judge Priscilla Owen.
Trump’s list, released Wednesday, doesn’t include any nonjudges. Other names floated in the past as possible nominees for a future Republican president included former U.S. Solicitor General Paul Clement, now a partner at Bancroft, and Sen. Mike Lee, R-Utah.
Also not on the list: Trump’s sister, Third Circuit Judge Maryanne Trump Barry, although that was no surprise. Trump has praised his sister as “brilliant,” but said he wouldn’t consider nominating her to the Supreme Court because of the conflict of interest. He’s also said that the two share “different views.”
Related: Texas’ Most Prolific Judicial Tweeter Makes Trump’s Shortlist
Trump’s list drew praise and criticism depending on where the commentator sits on the political spectrum.
“The [Supreme] Court needs more justices who will base their decisions on the law, not politics, even under pressure, especially since the next president is likely to determine the direction of the court for a generation,” Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, said.
“It is also heartening to see so many Midwesterners and state court judges on the list—they would bring a valuable perspective to the bench, particularly since they have already served on a court of last resort in their own states,” she added.
Miranda Blue of People for the American Way noted: “It looks like Trump has, true to his promise, picked potential justices who would advance the conservative efforts to skew the federal courts far to the right.”
Senate Judiciary chairman Charles Grassley, R-Iowa, said in statement, “Mr. Trump has laid out an impressive list of highly qualified jurists, including Judge Colloton from Iowa, who understand and respect the fundamental principle that the role of the courts is limited and subject to the Constitution and the rule of law.”
So who made the list?
Steve Colloton
Judge Steven Colloton, 53, joined the Eighth Circuit in 2003. Colloton is a former clerk to the late Chief Justice William Rehnquist. He was appointed by President George W. Bush. He previously served with independent counsel Kenneth Starr.
Before joining the appellate court, Colloton was the U.S. attorney for the Southern District of Iowa.
Allison Eid
Colorado Supreme Court justice Allison Eid is a former Clarence Thomas clerk. She took her seat on the state high court in 2006, leaving her position on the faculty of the University of Colorado Law School, where she taught constitutional law, legislation, the law of politics, first-year torts and advanced torts.
Before teaching, she also practiced commercial and appellate litigation in the Denver office of Arnold & Porter.
Thomas Hardiman
Judge Thomas Hardiman, 50, who joined the Third Circuit in 2007 just 3 1/2 years after taking his seat as a district court judge for the Western District of Pennsylvania.
Hardiman’s ruling that a jail policy of strip searching all arrestees does not violate the Fourth Amendment was upheld by the Supreme Court in 2012. In 2013, he dissented from his court’s decision upholding under the Second Amendment New Jersey’s law requiring applicants for licenses to carry handguns in public to show “justifiable need.”
“Those who drafted and ratified the Second Amendment were undoubtedly aware that the right they were establishing carried a risk of misuse, and States have considerable latitude to regulate the exercise of the right in ways that will minimize that risk,” he wrote in Drake v. Filko. “But States may not seek to reduce the danger by curtailing the right itself.”
Related: Third Circuit Judge Among Trump’s Supreme Court Picks
And he also dissented in a 2013 decision holding that a public school violated the First Amendment by banning students from wearing bracelets inscribed with “I [love] boobies” sold by a breast cancer awareness group.
Raymond Gruender
Judge Raymond Gruender, 52, became U.S. attorney for the Eastern District of Missouri in 2001 and served in that position until his confirmation to the Eighth Circuit in 2004.
Gruender has written opinions holding that the Pregnancy Discrimination Act of 1978 did not give female employees the right to insurance coverage for contraceptives used solely to prevent pregnancy.
He dissented from a panel ruling that upheld an injunction striking down a South Dakota law requiring abortion providers to inform patients that an “abortion will terminate the life of a whole, separate, unique, living human being.” When the case was heard en banc, Gruender, writing for the full court, upheld the law as constitutional on its face.
Raymond Kethledge
Judge Raymond Kethledge, 49, sits on the Sixth Circuit and is a former clerk to Justice Anthony Kennedy. He joined the appellate court in 2008 after practicing law as a corporate attorney and former counsel to Ford Motor Co.
Joan Larsen
Trump’s list also names a number of state supreme court judges.
Joan Larsen was named to the Michigan Supreme Court by Gov. Rick Snyder in September 2015. Larsen is a former clerk to the late Justice Antonin Scalia. She worked in the George W. Bush Department of Justice in 2002-2003 and then joined the University of Michigan School of Law as an adjunct professor and special counsel to the dean.
When appointed to the state court, Larsen said she would be a “strict constructionist,” explaining, “I believe in enforcing the laws as written by the Legislature and signed by the governor. I don’t think judges are a policy-making branch of the government.”
In March, at a memorial for Scalia, Larsen recalled Scalia as a “fundamentally happy man” who would sing in his chambers and whistle in the corridors of the court. Larsen remembered one time when she made a mistake citing Webster’s Third New International Dictionary in a draft opinion.
Scalia, a critic of that tome, called her out. Larsen said she had used that edition because it was in the justice’s front office. Scalia said the dictionary had been put there as a “trap laid for the unwary.”
Thomas Lee
Trump also named a judge with a well-known pedigree in Washington legal circles. Thomas Rex Lee, son of former Solicitor General Rex Lee, joined the Utah Supreme Court in July 2010.
Lee is a former Clarence Thomas clerk who specialized in trademark litigation when in private practice. He served as deputy assistant attorney general in the Civil Division of the U.S. Justice Department from 2004 to 2005.
Lee has been called a pioneer in “corpus linguistics” to determine ordinary meaning and has applied that in an opinion. He also has argued in the U.S. Supreme Court, representing Utah in Utah v. Evans, a 2002 challenge by the state to the Census Bureau’s use of “hot-deck” imputation, a statistical method.
William Pryor
Judge William Pryor of Alabama joined the Eleventh Circuit in 2004 despite considerable controversy over his nomination. He was criticized by Senate Democrats in the 108th Congress who called him an extremist for such statements as referring to the Supreme Court as “nine octogenarian lawyers” and saying that Roe v. Wade was the “worst abomination in the history of constitutional law.”
President George W. Bush installed Pryor using a recess appointment to bypass the regular Senate confirmation process. He received Senate confirmation on May 23, 2005, after Sen. John McCain, R-Arizona, announced an agreement between seven Republican and seven Democratic U.S. senators, the so-called Gang of 14, to ensure an up-or-down vote on Pryor and other nominees.
On the bench, Pryor specially concurred in an unanimous panel decision enjoining the secretary of Health and Human Services from enforcing the contraception insurance mandate under the Affordable Care Act against Catholic television network EWTN. That case was one of the petitions pending in the high court until the justices ruling Monday in Zubik v. Burwell.
In 2009, Pryor led a unanimous panel upholding Georgia’s photo ID law as a voting requirement.
David Stras
Another former Clarence Thomas clerk on the list is Minnesota Supreme Court associate justice David Stras, 41. Stras joined that court in 2010. He taught at the University of Minnesota Law School for six years prior to his appointment.
Diane Sykes
Seventh Circuit Judge Diane Sykes, 58, of Wisconsin, is well-known in conservative circles and has been called by some liberal groups as the most conservative judge on Trump’s list. She is a former justice of the Wisconsin Supreme Court.
Her more recent opinions include supporting a voter ID law and expanding the ability of religious objectors to limit their employees’ access to contraceptive insurance coverage under the Affordable Care Act. She also wrote an opinion in 2011 holding that the Second Amendment prohibited Chicago’s ban on firing ranges
Sykes spoke about her clerk-hiring practices at a conference in Milwaukee in 2014. “I don’t want to be fighting with someone all year,” Sykes said about hiring a clerk whose views are different than hers. “I don’t only hire Federalist Society members” as clerks, she said, but there has to be “some general philosophical fit.”
Don Willett
Another state supreme court justice is well-known to the Twitter community and someone who has actually criticized Donald Trump. Texas Supreme Court Justice Don Willett, 49, worked on the Bush-Cheney presidential campaign and transition team. In the White House, Willett served as special assistant to the president and director of law and policy for the White House Office of Faith-Based and Community Initiatives.
In 2003, Willett returned to Texas to become state deputy attorney general for legal counsel in the office of newly elected Texas Attorney General Greg Abbott, where he served until he was appointed to the state high civil court in 2005.
Circuit judges’ financial disclosure forms
We’ve compiled below some of the recent financial disclosure forms of judges on Trump’s shortlist:
Steven Colloton of Iowa: 2014 and 2015
Raymond Gruender of Missouri: 2014 and 2015
Thomas Hardiman of Pennsylvania: 2014 and 2015
Raymond Kethledge of Michigan: 2014 and 2015
William Pryor of Alabama: 2014 and 2015
Diane Sykes of Wisconsin: 2014 and 2015
Zoe Tillman contributed to this report.
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