This week Donald Trump delivered what he promised in March—a list of people he would consider as “potential replacements for Justice [Antonin] Scalia.” Trump wants to ease concerns among Republicans and conservatives (two categories that largely overlap) about his commitment to “conservative principles.” As if to leave no doubt about that, Trump said the list was “compiled, first and foremost, based on constitutional principles, with input from highly respected conservatives.” The businessman held up Scalia as his model for a Justice: He was “a brilliant Supreme Court Justice,” whose “career was defined by his reverence for the Constitution,” and who “did not believe in legislating from the bench . . . I held [him] in the highest regard and will always greatly respect his intelligence and conviction to uphold the Constitution.”
Trump said the lawyers on his list—some 11 in all—are “representative of the kind of constitutional principles I value and, as President, I plan to use this list as a guide to nominate our next United Supreme Court Justices.” Note here the use of the plural Justices. The list will be used in filling not just the Scalia vacancy but also any others that might occur during a Trump presidency.
The list includes Steven Colloton of Iowa; Allison Eid of Colorado; Raymond Cruender of Missouri; Thomas Hardiman of Pennsylvania; Raymond Kethledge of Michigan; Joan Larson of Michigan; Thomas Lee of Utah; William Pryor of Alabama; David Stras of Minnesota; Diane Sykes of Wisconsin; and Don Willett of Texas.
Trump’s list has no lawyers from the states on America’s two coasts; most are from states in so-called fly-over country. Where all of the current Justices went to law school at either Harvard or Yale, only one lawyer on Trump’s list went to an Ivy League law school (Colloton, Yale). Six (all appointed by George W. Bush) sit on federal appeals courts—whence has come every Justice since 1987. Intriguingly, five are on state supreme courts. The last Justice who came from a state court was Sandra Day O’Connor, whom Ronald Reagan, an advocate of federalism, selected in 1981.
Trump did not say what made each of his lawyers on his list a judicial conservative, and thus Scalia-like, at least in how they’d vote. But it’s apparent from the reaction to Trump’s list that they are conservatives. Even conservatives who say they will never vote for Trump have not objected to a single individual on the list, while liberal interest groups are critical, citing abortion and other “hot-button” cases in which some on the list have had occasion to write in behalf of a position adamantly opposed by liberals.
Trump has won praise for his list from Republican members of Congress, among them Speaker of the House Paul Ryan, and Senators Charles Grassley, Mike Lee, John Cornyn, Orrin Hatch, Cory Gardner, Jeff Sessions, and David Perdue. Less impressed with Trump are conservatives who have no confidence in him as a conservative or a constitutionalist, and who believe that here, too, he will change his mind. The conservative blogger Erick Erickson told The New York Times yesterday, “Like every clause of every sentence uttered in every breath Donald Trump takes, this is all subject to change. He will waffle, he will backtrack, and he simply cannot be believed.”
For some conservatives, then, the problem with Trump’s list has nothing to do with the list but everything to do with Trump: How can such a man be counted on to pick the kind of Justices he’s now promised? One answer is that Hillary Rodham Clinton manifestly would not choose such jurists. There is a chance Trump might.
