Every White House in the modern era has sought to be prepared in case a vacancy arises on the Supreme Court. President Donald Trump’s legal advisers don’t know much more than anyone else about the likelihood of a vacancy this year, but they are making contingency plans. Those plans center on the possibility that Ruth Bader Ginsburg, at 85 the oldest justice, will leave the court.
At the moment, there appear to be seven leading contenders, who can be loosely grouped into a first and second tier based on how much attention they are getting. Trump has released a public list of his potential Supreme Court nominees, the most recent version of which came out in November 2017. All seven candidates are drawn from that list.
The four candidates under most serious consideration are all appeals-courts judges who were placed on the bench by Trump. Amy Coney Barrett’s confirmation to the 7th US Circuit Court of Appeals became a national news story in September 2017 when Democratic Sen. Dianne Feinstein and a few other critics made an issue of the nominee’s religious views. In large part because of that experience, Barrett has become a favorite of social conservatives. She was considered for the Supreme Court nomination that ultimately went to Brett Kavanaugh.
Like Barrett, 6th Circuit Judge Joan Larsen clerked for Justice Antonin Scalia, who died in 2016. She had been serving on the Michigan Supreme Court when Trump nominated her for her current job. Of the top four candidates, Larsen had the widest margin in her confirmation vote, winning the backing of 60 senators including eight Democrats.
Judge Amul Thapar is also on the 6th Circuit. A Kentuckian, he has the strong support of Senate majority leader Mitch McConnell. Like many conservative judges, Thapar has expressed concern that excessive judicial deference to administrative agencies undermines the separation of powers.
Judge Allison Eid replaced Trump‘s first Supreme Court appointee, Neil Gorsuch, on the 10th Circuit. She clerked for Justice Clarence Thomas on the Supreme Court. During Eid’s confirmation hearings, Democrats scoured her academic writings for clues that she might want to narrow the scope of the federal government‘s power to regulate commerce. Many conservatives hope that she does.
The three other contenders include two judges who were considered for previous Supreme Court vacancies: Diane Sykes, a colleague of Barrett on the 7th Circuit, and Thomas Hardiman of the 3rd Circuit.
Conservatives are enthusiastic about Sykes, but some would prefer a nominee younger than 61. Trump is said to like Hardiman personally. Rounding out the list is Britt Grant, who had briefly served on the Georgia Supreme Court when Trump nominated her for her current seat on the 11th Circuit.
This list is unusual for a Republican White House. The top four candidates are three women and an Indian-American man; the top seven candidates include only one white man, Hardiman. The apparent judgment is that confirmation might be easier, or the political benefit of confirmation higher, for a nominee who is not the third white man in a row.
The shortlist may change as the options are considered. Judge Ray Kethledge of the 6th Circuit, who like Barrett and Hardiman was passed over for the nomination that went to Kavanaugh, might come up again.
The early shape of the list nonetheless matters. Both of Trump’s previous Supreme Court nominees were top-tier considerations from the beginning. For at least a month and a half before he was nominated, I was hearing that Gorsuch was likely to be Trump‘s nominee for the seat that Justice Scalia had held. Kavanaugh was considered one of the top contenders for the next vacancy from at least November 2017 onward.
The process may be different now that Patrick Cipollone has replaced Don McGahn as White House counsel. But if there is a vacancy this year, don’t be surprised if Trump nominates Barrett, Eid, Larsen or Thapar.
Ramesh Ponnuru Ramesh Ponnuru is a Bloomberg Opinion columnist. He is a senior editor at National Review, visiting fellow at the American Enterprise Institute and contributor to CBS News. -- Ed.
