Kellyanne Conway briefly spoke to reporters at Trump Tower in New York City on Wednesday, during which she let slip a crucial piece of information regarding Donald Trump’s possible Supreme Court nominations.
“You’ve seen the list of 21,” Conway told reporters. “The list has not changed. President-Elect Trump has committed to choosing his Supreme Court justices, particularly the vacancy created by the untimely death of Justice Scalia, he’s committed to choosing from that list of 21.”
The former pollster’s statement would indicate that Trump is not considering Sen. Ted Cruz to serve on the Supreme Court, despite rumors circulating Capitol Hill. Conway also noted that one-in-five general election voters considered selecting a nominee to succeed the late Justice Antonin Scalia on the U.S. Supreme Court to be one of the highest priorities for the incoming Trump administration.
Though it’s difficult to assess who Trump might pick from the list of possible candidates his campaign compiled during the general election, some Court-watchers are placing bets on the early favorites.
Josh Blackman, a law professor at South Texas College of Law Houston, is curating a LexPredict contest at FantasySCOTUS which allows entrants to pick the most likely nominee from Trump’s 21-person list (plus Republican Sen. Ted Cruz, given rumors abounding on Capitol Hill). FantasySCOTUS is a Supreme Court fantasy league which allows participants to make predictions about cases before the Court, which Blackman also runs. Both FantasySCOTUS and his blog have a following among lawyers, journalists, and law professors.
Judge Raymond Kethledge of the 6th U.S. Circuit Court of Appeals is, as of this writing, the narrow favorite of participants in the FantasyJustice tournament, followed closely by Judge William Pryor of the 11th U.S. Circuit Court of Appeals. Justice Don Willett of the Texas Supreme Court, Judge Diane Sykes of the 7th U.S. Circuit Court of Appeals, and Cruz round out the top five.
Pryor, 54, who also sits on the U.S. Sentencing Commission, is considered a fairly orthodox conservative jurist, but has elicited controversy for his blunt critiques of Roe v. Wade and Miranda v. Arizona. Democrats vehemently resisted his nomination to the 11th Circuit from 2003 until 2005, characterizing him as an extremist lacking judicial temperament. One year into the impasse, President George W. Bush used the recess power to appoint Pryor to the bench. Recess appointments typically last one year. Pryor was eventually confirmed by the full Senate as part of a broader deal on judicial confirmations in a 53-45 vote which largely followed party lines. Since joining the bench, he ruled in favor of a Georgia voter ID law and against a framework established by the Affordable Care Act, which provides contraceptive coverage for employees of religiously-affiliated organizations who object to complying with a scheme to provide birth control or abortifacients. He is a graduate of Tulane University Law School.
Kethledge, 49, had a similarly contentious confirmation battle, though he was eventually confirmed in 2008 as part of a deal between Bush and Michigan Democratic Sens. Carl Levin and Debbie Stabenow to fill vacancies on the 6th Circuit. He won accolades in 2014 for a particularly cheeky ruling in which he excoriated the Equal Employment Opportunity Commission for bringing an anti-discrimination case against Kaplan Higher Education Corporation because they use credit checks when hiring employees; EEOC argued such measures have a disparate impact on minorities. Kethledge also sided with the federal government in a high-profile Fourth Amendment case concerning the use of phone data in securing criminal convictions. Kethledge graduated University of Michigan Law School and clerked for Justice Anthony Kennedy.
Willett, 50, is an alumnus of the Bush administration, where he served in the White House and at the U.S. Department of Justice as Deputy Assistant Attorney General for the Office of Legal Policy. He was appointed to the Texas Supreme Court by Gov. Rick Perry in 2oo5 — his appointment was confirmed by election in 2006 and he was reelected without significant opposition in 2012. He was also designated Texas Tweeter-Laurete by the state legislature given the popularity of his Twitter feed. Willett wrote a dissent pillorying the flood of contradictory case law occasioned by imprecision or ideological chicanery, arguing that the free-form common law is increasingly eclipsed by fluid, antithetical opinions written by dead judges. He also authored a concurrence in Patel v. Texas Department of Licensing and Regulation steeped in freedom of contract theory, and heavy on Lochnerian jurisprudence (he managed to cite both Fredrick Douglas and Pope Francis in the opinion.) He is a graduate of Baylor Law School.
Sykes, 58, a Bush appointee, joined the 7th Circuit in 2004. She previously served on the Wisconsin Supreme Court. Her major rulings include an opinion written for the en banc 7th Circuit which found the U.S. Sentencing Commission’s career offender’s residual clause unconstitutionally vague, as well as a decision which expanded the ability of religiously-affiliated employers to receive exemptions from providing contraception coverage under the Affordable Care Act. (Lyle Denniston noted at the time it was the broadest ruling by a federal appeals judge barring enforcement of Obamacare’s birth control mandate.) She is a graduate of Marquette University Law School.
Cruz, 45, would be the youngest in the field of possible appointees. Prior to joining the U.S. Senate, he served as Texas Solicitor General, representing the state before the Supreme Court nine times. He staged successful arguments in Van Orden v. Perry, securing the state’s right to erect a statue of the Ten Commandments on the statehouse grounds, Medellin v. Texas, which required to the Court to decide whether the president can require the states to comply with an international treaty, and if the Constitution requires the state courts to enforce a decision of the International Court of Justice. He graduated from Harvard Law School and clerked for Chief Justice William Rehnquist.
Each of these nominees represent something of a departure from the current composition of the court. All are from the Midwest or the Deep South, whereas each of the current justices are originally from a coastal state. Four of the five did not attend Harvard or Yale Law Schools, while each of the current justices did. So while all are qualified, this lot of nominees represents a departure from the stodgy credentialism which has dominated appointments to the high court in recent administrations.