President Trump said a few days ago that he has five finalists for the Supreme Court nomination in mind, of whom two are women. Yesterday, New York Post reporter Mary Kay Linge called me for comments on the six women who are included on Trump’s list of 25 Supreme Court finalists. Mary Kay’s article is here: “Women are frontrunners on Trump’s list of Supreme Court nominees.”
Ms. Linge accurately reported my comments; I will add a few thoughts here.
1) I think it is pretty easy to whittle the list of six women down to three, mostly on the basis of age. Trump isn’t going to nominate 60-year-old Diane Sykes, no matter how good a judge she may be. These days, relative youth is a key criterion for Supreme Court appointments. George W. Bush considered Sykes for the Court in 2005. That was when she had her shot.
2) Similarly, he isn’t going to choose Margaret Ryan, who has spent almost her entire career in the military, including 12 years in the Marine Corps. Ryan currently serves on the Court of Appeals for the Armed Forces, to which she was appointed by George W. Bush. Her military background offers interesting diversity, but is too narrow for a Supreme Court appointment. Plus, Ryan is 54 years old.
3) Britt Grant, who is currently serving on the Georgia Supreme Court and whom Trump nominated to the 11th Circuit Court of Appeals just two months ago, is only 40. That is probably too young, especially in view of the fact that Grant had no judicial experience at all until January 2017. I think her lack of experience could legitimately be criticized by Democrats, and Trump has no need to open up that line of attack.
4) Much speculation has centered on Amy Coney Barrett, the Notre Dame law professor whom Trump nominated to the 7th Circuit Court of Appeals last year. She was confirmed, amid considerable Democrat Party condemnation, on a 55-43 vote. Barrett is controversial because she is a practicing Catholic who has seven children. Moreover, in 2003 she wrote an article in which she said that Roe v. Wade was “erroneous.” [UPDATE: Paul points out that although this has been reported as fact, it isn’t true. More fake news.] Barrett is 46 years old, more or less the perfect age. I agree with many pundits that if Trump nominates a woman for Justice Kennedy’s seat, it will most likely be Barrett. Her nomination would trigger a bitter fight centered on the social issues.
5) That leaves two judges on Trump’s list with strikingly similar backgrounds. Allison Eid served on the Colorado Supreme Court until last year, when President Trump nominated her to the 10th Circuit Court of Appeals. Her confirmation vote was 56-41. Before going on the Colorado Supreme Court, Eid was a professor at the University of Colorado law school. As best I can tell, the Left has little ammunition against Judge Eid.
6) Joan Larsen is currently serving on the 6th Circuit; like most of the others on the list, she is a recent Trump appointee (November 2017). From 2015 until late 2017 Larsen served on the Michigan Supreme Court, and before that she taught at the University of Michigan Law School. She also worked in the Department of Justice during the George W. Bush administration. Larsen doesn’t have much of a track record as a judge, since her tenure on the bench dates only to 2015. She was confirmed to the 6th Circuit last year on a 60-38 vote. She is 49 years old.
So my best guess is that Amy Coney Barrett is the most likely nominee of these six women. I think Allison Eid and Joan Larsen are the other serious contenders, with the advantage going to Larsen on account of her one-sided vote in the Senate last year, and the fact that she is four years younger than Eid.
Of course, there is no reason to assume Trump will appoint a woman to succeed Anthony Kennedy. He may nominate one of the men on his list, and save the women for Ruth Bader Ginsburg’s retirement.