Who Should Trump Nominate to Scalia’s Seat?

I just read Tim Alberta’s piece on the scuttlebutt on Supreme Court nominations coming out of the Federalist Society convention and determining that it comes down to Sykes v. Pryor for the Scalia seat. I heard something different in the two days I was there. While everyone admires Judge Pryor and Judge Sykes, there is a clear advantage to nominating Joan Larsen of Michigan (who also hosted a panel). The advantages are as follows: 1) She is on Trump’s list. 2) She was a Scalia clerk. 3) She is not a Joanie-come-lately to originalism, but introduced reading the actual Constitution to her Michigan students. 4) Michigan senator Debbie Stabenow is up in 2018 and could not plausibly oppose a home-state woman who sits on her state’s highest court. Her defection would create cover for other Democrats. 5) Larsen spoke at Scalia’s memorial service, being the only person not a Supreme Court Justice or a member of the Scalia family to do so. 6) She has an attractive family and is married to a conservative law professor a la Justice Ginsberg and Marty at Georgetown. 7) She is sound on all matters of judicial interpretation without causing the vapors in the usual quarters. 8) Her appointment would end the spectacle of all the women justices on one side with the “progressive” vision. 9) Trump could tout Michigan’s support and reward that state with an appointment. 10) Unlike Ted Cruz, Larsen attracts votes by her manner and personality rather than repel them. 11) Even outside of Michigan she brings a Midwestern sensibility (she’s a Northwestern grad) to a Court distinctly lacking that sensibility. 12) She does not use her brilliance to talk down to people. 13) She is a known quantity in D.C. having worked here in the 1990s. 14) The Scalia family would be over the moon, thus the narrative of a torch being passed to a Scalia acolyte and a woman would cap his career as the appointment of Roberts capped Rehnquist’s. 15) She is a decade younger than Pryor or Sykes. Pryor and Sykes do nothing to cement new groups into the Trump coalition and Larsen does without sacrificing strict constructionism.

1) State Judges. No state judges. Our biggest duds have come from the state system—Justices Brennan, O’Connor, and Souter. This makes sense—and their particular brand of awfulness makes sense—given the nature of the state judiciary. Their courts typically have residual common-law power and insofar as they don’t, it’s to apply state constitutions, which are frequently progressive-era constitutions bearing little resemblance to the federal one. There should therefore be a very strong presumption against state-court judges unless there is a decisive contrary record of understanding the federal-judicial role. Furthermore, this shouldn’t be someone’s first rodeo in the Senate. Sitting federal judges don’t go into the Senate confirmation process cold. 2) Justice Larsen. Everything you hear about her is great! All the right people like her and she was fantastic at the Mayflower. She’s also been a justice for one year. Look, all the right people said that John Roberts was great, too—he had twice as much judicial experience—and look at how that turned out. Yes, CJR gets sort of a bad rap: He doesn’t screw up that many cases. But we shouldn’t want to replace Scalia with another Roberts. We should want to replace him with another Scalia! The fact is we don’t need vouching for Judges Sykes and Pryor; their judicial records speak for themselves. Judges Gorsuch, Colloton, and Hardiman are other judges who get talked about and who are certain constituonalists with testable records, such that it doesn’t make sense to do a winking and nodding game. Keep in mind the argument for Justice Larsen is that we should put someone on the Court mostly by force of reputation (opposed to a testable judicial record) so that she can be there for 40 years. Let the downside risk there sink in. Trump should nominate her to the Sixth Circuit when Judge McKeague goes senior and then see what happens. 3) Electoral considerations. The Court should not be a means of coalition building for the GOP. We got Brennan because Ike wanted to improve his position politically with Catholic Democrats ahead of the 1956 elections. Souter was a state-patronage play from Warren Rudman and John Sununu. O’Connor was a campaign promise by Reagan in 1980. Fourth time’s a charm? Insofar as any Trump voters are voting for him based on the Supreme Court it’s because they want conservative justices. Give the people what they want! If Justice Larsen has a testable record of judicial conservatism, then pick her. But we shouldn’t pretend that a SCOTUS-clerk law professor from Ann Arbor is going to move Fishtown permanently into the R column. 4) Choices on the merits. We should replace Scalia with a Scalia, and Judges Sykes, Pryor, Colloton, Gorsuch, and Hardiman have records that fit in that mold. Each one brings a different, but superlative, profile to the table. * Pryor is generally considered one of the two or three most conservative judges on the courts of appeals. Nevertheless he was nominated by Obama to the Sentencing Commission and easily confirmed by the Senate. * Sykes is also a conservative superstar. But she’s also a personable and telegenic woman who will be hard for Democrats to drag through the mud without looking like monsters. * Judge Gorsuch is technically “Judge Neil Gorsuch, D.Phil. (Oxon.).” He’s just that well credentialed. And he was confirmed by voice vote. * Judge Colloton comes from the home state of Sen. Grassley, Chairman of the Judiciary Committee. * Judge Hardiman has experience as a district judge and serves on the Third Circuit—along with Donald Trump’s sister. Each of them has a decade of experience on the federal courts that we can read for ourselves. Each of them would be amazing and we know it. Each of them can also be confirmed, if handled correctly. Given our current position in the Senate, there is simply no need to deviate from this list. 5) Tactical considerations. Those five can each be confirmed but it depends on the order of operations and, in the end, it’s a question of floor tactics. We need to operate under the assumption that any conservative pick will be successfully filibustered. That’s just how it’s probably going to go after the Garland business. Who gets picked should depend upon whether that person will help McConnell get the votes necessary to nuke. Maybe—as speculated by Tim Alberta—someone like Judge Sykes will avoid a successful filibuster. But that can’t be assumed. The question is whether someone, when filibustered, can lay the groundwork for a rule change. That’s a tactical question that only McConnell really knows the answer to. But the broader point is this: Trump won and the GOP held the Senate with votes to spare. The 2018 map has 10 Democrats up in states Trump carried. If Republicans can’t get a known, tested constitutionalist on the Court now—to replace Scalia!—when will they ever? So stick with the conventional wisdom. Go with Sykes or Pryor because they’re great and we know it. Decide which one of the two to nominate now based on who’s likelier to get the needed votes on cloture or the nuke. Keep it simple.