Who should replace Anthony Kennedy?
Legal bloggers weigh in on their favorite picks
Eugene Kontorovich Law professor at Northwestern University who clerked for Judge Richard Posner on the U.S. Court of Appeals
President Trump’s list of candidates is an embarrassment of judicial riches, several of whom would be great bets for a Supreme Court seat. But Sen. Mike Lee ’s name sticks out. Lee, R-Utah, is one of the smartest people in the Senate. He has an unquestionable commitment to interpreting the Constitution as it was understood when it was ratified, not as it has evolved in the minds of Supreme Court justices and law professors. But he is also humble and gracious, important traits when one has to work with the same eight people for decades. Most interestingly, he is the only one on the list who is not currently a judge. It used to be more common for politicians to wind up on the court. The increasing reliance on lower court judges has turned the federal judiciary into a career ladder; talented lower court judges may too often have a Supreme Court seat in mind when they write their opinions. Finally, as a non-judge, Lee would have no judicial opinions to defend.
Eric Citron Attorney with Goldstein & Russell and a writer for SCOTUSblog, who clerked on the Supreme Court for Justices Sandra Day O’Connor and Elena Kagan
What I’d do if I were Trump — and the thing that would make him most popular and strengthen him most at the polls — would be to nominate someone who fits the mold of his own populist campaign. That means someone who is conservative on the social and constitutional issues that matter to his religious supporters, but who also demonstrates real concern for the plight of the American working class. Perhaps short-lister Thomas Hardiman, who worked as a taxi driver through college, has greater exposure to and sympathy for the working-class perspective.
Glenn Harlan Reynolds University of Tennessee law professor and a member of USA TODAY's Board of Contributors
My personal first choice would be former Texas Supreme Court Justice and 5th Circuit Judge Don Willett. Writing in Patel v. Texas Department of Licensing and Regulation, Willett quoted Frederick Douglass’ joy on receiving the first money he earned as a free man and observed, “Douglass’ irrepressible joy at exercising his hard-won freedom captures just how fundamental — and transformative — economic liberty is.” Willett knows about such things. After his father died when Willett was 6, his mother supported the family by waiting tables at a truck stop. He attended Baylor University and Duke — first-rate schools, but a change from the Harvard/ Yale monoculture that currently fills the court. And like many previous justices but no current ones, he has actually run for office. He’s a first-rate mind with a background that reflects Trump’s America.
Ilya Somin Professor of law at George Mason University and an adjunct scholar at the Cato Institute
In an age of overreaching government, and an authoritarian-minded president who admires brutal dictators, we need a Supreme Court justice who will not defer to government power, and will aggressively protect our rights. The one who best fits that bill is probably 5th Circuit Judge Don Willett. As a justice of the Texas Supreme Court, Willett was known for supporting a broad range of rights. That includes opposing asset forfeiture laws that enable law enforcement officials to seize property with little or no due process, a practice that often victimizes the poor and minorities. Willett’s statements suggest he will strongly enforce constitutional limits on the scope of federal government power. Both sides of the political spectrum could benefit from tighter restrictions on federal authority. And he was highly critical of Trump during the 2016 campaign, even comparing his border wall to the Death Star. That suggests Willett will not hesitate to rule against the administration, when necessary.
William Vogeler California attorney who writes for FindLaw’s Legal Professional Blogs
Trump should nominate Judge Amy
Coney Barrett because she will add a conservative voice for women on the nation’s highest court. Barrett, of the U.S. Circuit Court of Appeals for the 7th Circuit, is a former law professor. At 46, she is the second-youngest woman among six who are on the president’s short list. Three women currently serve on the Supreme Court, but they were all nominated by Democrats. Barrett would become the only female, Republican appointee since Sandra Day O’Connor, the first woman elevated to the high court.
George S. Khoury California civil rights attorney in private practice and senior writer for FindLaw.com’s Legal Professional Blogs
Trump should consider tapping the tweeting Judge Don Willett. Willett was just recently nominated and confirmed to the federal circuit court of appeals despite having given Trump a tough time. That might be all the more reason for him get a promotion. Not appointing a “yes man” would be seen as a moderate move by Trump.