President Trump's pick for the next Supreme Court justice is due in four short days, and his list of 25 candidates to fill the seat of the retiring Justice Anthony M. Kennedy seems to have whittled down to about a half-dozen. That shortlist includes several potential picks whom he's already interviewed and a couple who have emerged as experts' favorites.
Let's look at the best arguments for and against each candidate in the pared-down list. (To be clear, these are the arguments for Trump picking the person and not necessarily for them actually being confirmed — even though that eventual nominee would be expected to join the court thanks to the GOP's slim Senate majority.)
Amy Coney Barrett
PRO: Barrett might be the most politically provocative pick here, which could suit Trump. When Barrett was being confirmed last year to serve as a federal appeals court judge, some Democrats raised concerns about her religiosity, with Sen. Dianne Feinstein (D-Calif.) being rebuked by some for telling Barrett that “the dogma lives loudly within you, and that's of concern.” As I wrote last week, picking Barrett would invite Democrats who are already angry about Senate Republicans' sidelining of Obama administration court pick Merrick Garland to overreach on an even bigger stage and could give Trump the kind of culture war he loves.
Barrett is also the leading female candidate, which could help her deal with questions about Roe v. Wade. At age 46, she's the youngest on this list, which would make Trump's conservative allies happy about her potential longevity on the court's right flank. And she hails from Indiana, where vulnerable Democratic Sen. Joe Donnelly may feel compelled to vote for her, as he voted last year for Neil M. Gorsuch.
CON: Trump has reportedly said he wants someone from Harvard or Yale universities, and Barrett isn't that. (She attended Rhodes College and went to law school at the University of Notre Dame, where she was a professor until last year.) She's also relatively inexperienced, having served on the appeals court for less than a year. That means it's less certain how she might rule going forward. And some will be wary of another David Souter situation — or even an Anthony M. Kennedy situation.
Brett Kavanaugh
PRO: The other odds-on favorite alongside Barrett, appellate judge Kavanaugh might be the most conventional pick. Kavanaugh has two Yale degrees, experience in both the George W. Bush administration and the Justice Department, and a 12-year history of decisions on a federal appeals court. He is reportedly a favorite of White House counsel Donald McGahn, who is running the selection and confirmation process for the White House.
Kavanaugh also wrote in 2009 that presidents should be insulated from investigation and lawsuits while in office — a view that could endear him to a president who faces multiple legal issues of his own.
CON: That long history of decisions could be 53-year-old Kavanaugh's biggest liability. While he has the stamp of approval from the Federalist Society, conservatives have raised concerns about a few of those decisions being a little too wishy-washy, including one on the Affordable Care Act. The fact that Kavanaugh clerked for Kennedy probably won't help on that front.
Perhaps most problematic: Sen. Rand Paul (R-Ky.) is reportedly cautioning against choosing Kavanaugh. It's one thing for the pick to have to win over Sen. Susan Collins (R-Maine) and Sen. Lisa Murkowski (R-Alaska); it's another if Paul were to balk. That could actually imperil the nominee in a party-line 51-49 Senate.
something to watch: Sen. Rand Paul has some reservations about Kavanaugh, per a few of his friends plus a WH aide. He has voiced these privately in recent days, but not publicly, the people said. Waiting to see what POTUS does... Paul was unavail for comment.
— Robert Costa (@costareports) July 2, 2018
Raymond Kethledge
PRO: Kethledge is the other name often mentioned aside Barrett and Kavanaugh, and like them, he is an appeals court judge. But while Barrett is a short-timer and Kavanaugh has some potential strikes against him on his record, Kethledge's decade on the court might be his biggest asset. Conservative radio host Hugh Hewitt wrote in The Washington Post that Kethledge, 51, has clear “originalist” credentials and bears the most similarities to new Supreme Court justice Gorsuch. Trump clearly loves reminiscing about that chapter of his presidency, and Kethledge could give him a chance to relive it.
CON: He's also not an Ivy Leaguer, having attended the University of Michigan and its law school. And he might be the least-exciting pick on this list, which could be a strike against him for the reality TV-star president.
Thomas Hardiman
PRO: The one thing people keep coming back to with Hardiman, 52, is his blue-collar upbringing. (Did you know that he once drove a taxi!?) The federal judge also was the other finalist last year when Trump wound up picking Gorsuch, which would suggest he has to be a favorite here. Trump's sister Maryanne Trump Barry served with Hardiman on the U.S. Court of Appeals for the 3rd Circuit and is reportedly a big advocate.
CON: Not to keep coming back to it, but he's not an Ivy Leaguer, having gone to Notre Dame and then to law school Georgetown University (where he drove the taxi). He's also got a bit of a whiff of a potential Souter/Kennedy situation about him, which will give some conservatives heartburn.
Amul Thapar
PRO: This is the sleeper pick, and Trump has shown that he likes to surprise us. Thapar, 49, is the finalist with the most diverse background, as the son of Indian American immigrants. He was the first Indian American to be appointed as a federal judge and would be the first Asian American writ large on the Supreme Court.
As conservative commentator Scott Jennings writes, Trump may like the idea of Justice Clarence Thomas, a black conservative, and an Indian American conservative holding down the court's right flank. Thapar certainly has originalist credentials and a strong résumé. And as a judge in Kentucky, he is reportedly Senate Majority Leader Mitch McConnell's (R-Ky.) favorite.
CON: Once again, he's not Ivy League (Boston College and the University of California at Berkeley). And unlike Barrett, who got three Democrats to vote for her, he didn't win a single Democratic vote when he was confirmed last year to the U.S. Court of Appeals for the 6th Circuit. Democrats would surely balk at his tough stance on minor drug offenses and would highlight a controversial decision in which he said someone making accusations of same-sex sexual harassment needed to provide “credible evidence that the harasser was homosexual.”
Joan Larsen
PRO: Larsen's name isn't always on these shortlists, but Trump has said there were two women on his, and she's been on his interview list. She's nearly as young as Barrett, at 49, and may even be better-equipped to deal with questions about Roe (Barrett's comments about it are the subject of plenty of debate). She also got more votes than Barrett last year, winning confirmation to a federal appeals court by a 60-38 vote. Those 60 votes included eight Democrats and both Democratic senators from her home state of Michigan. If Trump wants to go safe and pragmatic and wants to ward off the Roe questions by picking a woman, she might be the sleeper.
CON: She has a limited judicial record, having joined the Michigan Supreme Court in 2015 before Trump tapped her for the 6th Circuit (where she serves with Kethledge and Thapar) last year. She's also not an Ivy Leaguer, having attended the University of Northern Iowa and Northwestern University's law school.
