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Leading Conservative Think Tank Urges Trump to Consider These Names for Supreme Court

on the West Front of the U.S. Capitol on January 20, 2017 in Washington, DC. In today's inauguration ceremony Donald J. Trump becomes the 45th president of the United States.

The in-house publication for the conservative Heritage Foundation outlined over a dozen potential Supreme Court nominees should President Donald Trump fill another vacancy during his time in office.

Trump has telegraphed his strong desire to appoint at least one more justice–possibly even before the end of his first term. Years-old health concerns have plagued liberal Justice Ruth Bader Ginsburg and been ever-present on Democrats’ (and Republicans’) minds in recent years. Earlier this summer, there were even rumors that arch-conservatives Justice Clarence Thomas or Justice Samuel Alito might make a surprise announcement and exit the court in order to guarantee that a Republican president could appoint their successor.

At the top of the list is 55-year-old U.S. Court of Appeals for the Third Circuit Judge Thomas Hardiman.

In 2009, Hardiman penned the dissent in a case that barred an evangelical Christian parent from reading the bible aloud to a classroom full of kindergartners during show-and-tell. Per the judge, the majority’s prohibition against what they viewed as religious indoctrination was actually unconstitutional viewpoint discrimination because the school itself was not the vehicle for the Bible verse.

From his dissent:

Clearly, “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” It does not follow, however, that the state may regulate one’s viewpoint merely because speech occurs in a schoolhouse — especially when the facts of the case demonstrate that the speech is personal to the student and/or his parent rather than the school’s speech. The majority’s desire to protect young children from potentially influential speech in the classroom is understandable. But that goal, however admirable, does not allow the government to offer a student and his parents the opportunity to express something about themselves, except what is most important to them.

The last name on the list is likely quite familiar to Supreme Court observers; 50-year-old former U.S. Solicitor General Noel Francisco.

Authors John G. Malcolm and Zack Smith point out that Francisco is adored among the conservative movement due to his prior work for legendary justice Antonin Scalia (Francisco eulogized Scalia at a Heritage Foundation law conference just after the justice’s death; he also penned a paean to his former boss in the Chicago Law Review).

“Through these reflections, we learn a lot about Francisco’s own views on the law, especially his reverence for, and commitment to, originalism and textualism,” the authors note.

Law&Crime previously mused about Francisco’s highly successful tenure as the Trump administration’s Supreme Court lawyer:

Francisco has also been instrumental and atypically adept–arguably even dogged–at seeking stays from the Supreme Court that neutralize lower court injunctions. The effect has been continuance of Trump administration policies signed off on by the nation’s conservative justices without an actual assessment of the legal merits. Such stays hold for at least as long as those often lengthy legal controversies make their way back to the high court–oftentimes months or even years later–a form of juridical brinkmanship and a legalistic shell game likely to be emulated by future administrations pushing similarly controversial agendas and initiatives.

Another familiar name on the list is 47-year-old U.S. Court of Appeals for the District of Columbia Judge Neomi Rao–who replaced Justice Brett Kavanaugh in the D.C. Circuit after the latter’s appointment to the nation’s high court in the fall of 2018.

Rao’s ascension was full of controversy itself–she penned an article in college that blamed victims of date rape. Left-leaning legal groups issued a series of chiding press releases. But in the end, Rao’s own promotion was an easy call for the GOP-held Senate.

Since taking the bench, Rao has distinguished herself with a series of pro-Trump administration opinions. In late 2019, she was the lone dissent in a panel decision that affirmed a district court order supporting the congressional subpoena for Trump’s tax returns and other financial records. Her dissent was widely pilloried for its allegedly poor comprehension of the law and the U.S. Constitution.

“[A]llegations of illegal conduct against the President cannot be investigated by Congress except through impeachment,” Rao wrote–an idea that is unsupported by much of anything and which she did not bother to cite supporting authority for in her dissent.

Rao’s understanding of the law in this regard was implicitly rebuked by the Supreme Court earlier this year in two landmark opinions that upheld the congressional subpoena as well as a similar subpoena sent by Manhattan’s district attorney.

The youngest name on the list–and one of the lesser-known attorneys suggested for a seat on the nation’s court–is 41-year-old U.S. Court of Appeals for the 5th Circuit Judge Andrew S. Oldham.

The authors consider this judge, another Scalia disciple, something of a workhorse for the conservative legal movement.

“On the bench, Oldham has done yeoman’s work tackling a variety of legal issues from challenges to administrative actions, review of administrative appeals, and appeals from a host of district court decisions,” Malcolm and Smith note.

Though Oldham hasn’t had much opportunity to weigh in on headline-generating cases typically described as “hot-button issues,” his jurisprudence reveals a strong preference for textual literalism which might place him in the mold of Scalia or Justice Neil Gorsuch.

“In statutory interpretation we have three obligations: ‘(1) Read the statute; (2) read the statute; (3) read the statute!’” he noted in a Mandatory Victims Restitution Act case that vacated a massive restitution award for British Petroleum. “[W]hat Congress says in a statute’s text is the best guide to what Congress intends.”

Oldham did rule in one controversial case, however, which might be an instructive prism into his opinions on undocumented immigrants and executive branch police power.

In Mejia v. Barr, Oldham penned the panel decision that upheld Daniel Mejia’s deportation–even though he was served with a defective notice to appear that lacked a date or time–on the basis that the petitioner had waited too long to respond to the original removal order.

Oldham strayed from strict statutory interpretation in Mejia’s case and upheld the removal order of the immigration judge because “[i]n our view, the statutory text cannot bear the weight Mejia would place on it.” In other words, a textual literalist would have been compelled to rule in Mejia’s favor. But Oldham and the other judges found that “the hyperliteral meaning of each word in the text” would have produced an outcome they decided was not “fair” to the government.

Amy Coney Barrett, 48, also made the list. During Barrett’s appellate court confirmation hearing, Sen. Dianne Feinstein (D-Calif.) notoriously suggested that the nominee’s Catholic faith was concerning.

“The dogma lives loudly within you,” Feinstein said. Trump campaigned in 2016 on nominating pro-life justices to the Supreme Court. That will not change, and Barrett certainly fits the bill. 

The full list prepared by Heritage is meant to supplement and inform Trump’s extant list of potential Supreme Court nominees–a list he has promised to update on September 1.

“The list of potential Supreme Court justices that he compiled, and his pledge to stick to that list, were instrumental in his 2016 election,” the authors conclude. “We urge the president and White House counsel to give due consideration to these highly qualified individuals, who we believe have what it takes to serve with distinction on the Supreme Court.”

[image via Alex Wong/Getty Images]

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