Still on Donald Trump’s to-do list is carrying out a promise he made two months ago—that he’ll release a list of people that, if elected president, he’d choose from in filling Supreme Court vacancies. Trump is drawing up such a list in order to ease concern among conservatives that he might pick a liberal or pro-abortion rights judge.
Judicial selection is a topic Trump has said little about as a presidential candidate. And what he has said can be summarized under three headings, each of which is a name:
Maryanne Trump Barry
Maryanne Trump Barry is Trump’s sister. She has been a federal judge since 1983, when President Reagan made her a federal district judge for New Jersey. In 1999, President Clinton elevated her to the U.S. Court of Appeals for the Third Circuit.
On August 26, 2015, on Bloomberg News, Trump was asked whether he’d consider naming Judge Barry to the Supreme Court. Trump said his sister would be “phenomenal” and “one of he best, but frankly, I think she is—we’ll have to rule that out now, at least temporarily.”
On October 11, on Fox News, Trump was asked again about naming his sister to the Court. Said Trump, “would love to, but I think she would be the one to say, ‘No way, no way.’ She’s very happy where she is, I can tell you that.”
On February, 14, the day after Antonin Scalia died, in an appearance on CBS Face the Nation, Trump was asked yet again if he would name his sister to the Court. “My sister,” he said, “she also happens to have a little bit different views than me, but I said that in a very joking manner. But my sister obviously would not be the right person. It’s a conflict of interest for me.”
If we are looking for a woman Trump can enthusiastically praise, his sister is that (rare) woman. She has “different views” from his, but we don’t know what those differences are, or even whether they have anything to do with judging in general or her work as a judge. Whatever the differences might be, they apparently would not prevent him from picking her for the Court provided she was not his sister, since, for Trump, for a president to appoint his sister would create “a conflict of interest” that must be avoided. So, by Trump’s own measure, she is “not the right person.”
Not discussed in connection with the idea of Trump’s appointing his sister to the Court is the fact that she has taken senior status and is 73 years old. No president, not even Trump, would pick someone with those credentials.
Antonin Scalia
In a February 13 appearance on CBS, Trump was asked: “You’ve said that the President shouldn’t nominate anyone in the rest of his term to replace Justice Scalia. If you were President and had a chance, with 11 months left to go in your term, wouldn’t it be an abdication, to conservatives in particular, not to name a conservative justice . . . ?”
Trump replied that he would “certainly want to try “and nominate a justice.” He said he was “absolutely sure that President Obama will try and do it.” And he expressed hope that “our Senate is going to be able—Mitch and the entire group–. . . to do something about [Obama’s nominee],” adding that “in times of delay, we could have a Diane Sykes, or you could have a Bill Pryor, we have some fantastic people. But this is a tremendous blow to conservatism. It’s a tremendous blow frankly to our country.”
Here Trump recognized the constitutional role of the Senate, in providing or withholding consent. He seemed to endorse an assertion of the Senate’s consent power against anyone President Obama nominated when he said he hoped Senate Republicans would “do something about [the nomination].” Before the month was out, they did do something: they agreed to defer consideration of any choice the president might make until after the election. Obama, as we know, eventually chose Merrick Garland.
Trump mentioned Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit and William Pryor of the U.S. Court of Appeals for the Eleventh Circuit as among the “fantastic people” he could consider naming to the Supreme Court, whether in filling the Scalia vacancy and any that might occur during a Trump presidency. Both are judicial conservatives. And expect both of them (if they can agree to being named) to show up on the promised list of judges. Trump has said five to ten individuals will be on the list, and has asked The Federalist Society and the Heritage Foundation for help in making it.
Ted Cruz
On May 2, while campaigning in Indiana, Donald Trump was asked whether he would appoint Ted Cruz, an accomplished appellate lawyer, to the Supreme Court if he had the opportunity to do so president. Trump said Cruz’s “tough temperament” might make him unsuitable for the Court. Clearly, Trump was not exactly enthusiastic about making Cruz a Justice.
A day after Trump discussed Cruz’s temperament, the Texas senator merely said of the New Yorker that he is “a pathological liar,” “utterly immoral,” “a narcissist at a level I don’t think this country’s ever seen” and “a serial philanderer.” Don’t expect Ted Cruz to make Trump’s list of candidates for the Supreme Court.
