I am not talking about Tom Cotton, Josh Hawley, or Ted Cruz. All might make terrific picks, but my view is that judges with track records on the bench or as litigators are the front-line candidates for the few-and-far-between opportunities to name a new Justice to the Court.
The new list has several names who seem to have been included as a “favor” to some patron. There are several who, by virtue of position, experience, and scholarship just do not fit the template of a new nominee to SCOTUS. One or more of these individuals might make a fine Justice, but they simply don’t have the profile at this point in time to be taken seriously notwithstanding their inclusion.
There are several recently appointed members of various Federal Courts of Appeal. But as a general matter, these judges lack an established record of jurisprudence that would create any confidence in terms of what their judicial philosophy might be. Many have similar backgrounds and belonged to the right “organizations”, but most are short on judicial experience and the inclusion as one of only nine Justices on SCOTUS would be a bit jolting in my view.
But there are couple names on the new list that stand out to me — a couple obvious to people who pay attention to this stuff as I do — and a couple I never heard of but upon closer examination of their history, I think they could be serious candidates in the future. Maybe not for the first open seat, but for a second opening if that were to happen.
The most obvious to me is Paul Clement, former Solicitor General of the United States during the second term of Pres. Bush 43, and a highly accomplished advocate before SCOTUS. In his mid-50s, Clement fits the profile of a Justice who could serve 25+ years on the Court. He was a Clerk for Justice Scalia after graduating from Harvard Law School.
Fifth Circuit James Ho, on biography, scholarship, and judicial service, would be a tremendous selection. Judge Ho was born in Taiwan and moved to the US as a toddler. He went to Stanford and the University of Chicago Law School. He clerked for Justice Clarence Thomas, was Chief Counsel to Senator John Cornyn on the Senate Judiciary Committee, was the Solicitor General for the State of Texas, and was Co-Chair of a major law firm’s appellate and constitutional law practice.
Judge Ho would be controversial because he has developed a reputation for being something of a “bomb thrower” from the bench in his written opinions. His published decisions would be the source of great entertainment in a confirmation setting — one where I’m certain he would be more than capable of defending himself.
The final name I’ll mention — there are others who are interesting as well that I’m not going to cover — is someone that I’m guessing no one has ever heard of, but in my opinion, she’s likely somewhere near the top of any shortlist — Kate Todd, currently a Deputy Assistant to the President and a Deputy Counsel to the President. I believe this means she is, in effect, the intersection between the Office of the Chief of Staff, and the White House Counsel’s Office.
After graduating from Harvard Law School, Todd served as a law clerk for Justice Clarence Thomas, and before that she clerked for Judge J. Michael Luttig of the United States Court of Appeals for the Fourth Circuit — an extraordinarily influential individual in conservative legal circles in the US. She also worked in the White House Counsel’s Office for Pres. Bush 43.
Todd has an extreme “anti-regulation” history going back to her work for the US Chamber of Commerce litigation arm. This is a legal issue that is “near and dear” to Pres. Trump’s heart — more so than most of the “cultural” issues that animate many conservatives. She is reported to have been among the finalists to replace Justice Kavanaugh on the DC Appeals Court — a position that ultimately went to Judge Naomi Rao.
There will be significant pressure on Pres. Trump to nominate a woman to the Court regardless of where the opening occurs, with no conservative woman having been named to the Court since the retirement of Justice O’Connor. There are several prominent women Judges on Pres. Trump’s first list, and some were considered “finalists” for the positions that went to Justice Kavanaugh and Justice Gorsuch. Whether Kate Todd would “jump over” those other female candidates and go to the front of the line is hard to predict. But, if I wanted Donald Trump to appoint me to an important position, I’d rather be working for him close at hand rather than out in a federal building hundreds or thousands of miles away. And Donald Trump likes to do the unexpected, as was the case with Justice Gorsuch.
That’s why I think Kate Todd is a very “live” contender for a SCOTUS seat.