Trump's Supreme Court shortlist: Go big or play safe?

Anthony Zurcher
North America reporter
@awzurcheron Twitter

image sourceReuters
image captionL-R: Raymond Kethledge, Brett Kavanaugh, Amy Coney Barrett, and Thomas Hardiman

And then there were four. Maybe. Multiple news outlets have reported that President Donald Trump has narrowed his search for the next US Supreme Court justice down to one of four names - Brett Kavanaugh, Amy Coney Barrett, Raymond Kethledge and Thomas Hardiman.

All four currently serve as judges on US courts of appeals - the level below the Supreme Court in the federal judiciary system. All four were among the 25 names on Mr Trump's Supreme Court candidate list, the first version of which Mr Trump released during his 2016 presidential campaign to help convince conservatives he would fill court vacancies with choices to their liking.

Here's a closer look at the four, with the caution that this president can be unpredictable - and fully capable of changing direction at a moment's notice.

Brett Kavanaugh - the insider with a pedigree

The oldest (at 53) and the longest-serving of the three federal judges on this list, Mr Kavanaugh was appointed to the US Court of Appeals for the District of Columbia Circuit by President George W Bush in 2006. Prior to that, he served as a lawyer in Bush White House and, later, as staff secretary.

Mr Kavanaugh also had a notable stint working for Independent Counsel Ken Starr's investigation into Bill Clinton's Whitewater real estate deal, which concluded with a recommendation the president be impeached for obstruction of justice and lying under oath about his affair with intern Monica Lewinsky.

image sourceGetty Images
image captionBrett Kavanaugh's ties to George W Bush may be too much for Donald Trump

The most traditional of the three choices, Mr Kavanaugh attended an Ivy League law school (Yale) and has established a 12-year track record as a judge. He once clerked for Anthony Kennedy, the man he would replace. Picking him could be a way for Mr Trump to show his gratitude to the retiring justice for the opportunity to make a second court appointment.

While Mr Kavanaugh has received a vote of approval from the conservative groups that helped compile Mr Trump's 2016 Supreme Court list, some on the right have expressed concern about his reliability on social issues such as abortion and healthcare. While he has sided with conservatives on such cases, his opinion have not been as far-reaching as some on the right would have liked.

Outlook: Mr Kavanaugh is considered the front-runner at that point, but it's a double-edged sword with Mr Trump, who has a showman's taste for the surprise reveal. The president may also be reluctant to pick someone with close ties to George W Bush, who he has sharply criticised in the past. Then again, Mr Trump may like the fact that Mr Kavanaugh wrote a Minnesota law review article arguing that presidents should be shielded from criminal investigations and civil lawsuits while in office.

Amy Coney Barrett - the big-splash gamble

A 46-year-old mother of seven who has been a judge for less than a year, Mrs Barrett would be a somewhat unconventional pick for the Supreme Court. While historically presidents have turned to politicians and other candidates with limited federal judicial background for their court picks, recent selections have largely come with pristine legal pedigrees.

image sourceNotre Dame Law School
image captionAmy Comey Barrett could be a decisive vote to overturn Supreme Court abortion protections

The former Notre Dame law professor - and graduate - has become a favourite among grass-roots conservatives, however, after she was challenged by California Democratic Senator Diane Feinstein during her confirmation hearings for her appointment to the Seventh Circuit US Court of Appeals last October.

Conservatives were angered by the senator's comment about Ms Barrett's Catholic "dogma" and viewed it as using a religious test to sink her nomination.

Mrs Barrett is a particular favourite of anti-abortion evangelicals, who view her as a potentially decisive vote to overturn the 1973 Roe v Wade decision legalising abortion across the US.

She has expressed a "flexible" understanding of the power of Supreme Court precedent - that is, the deference paid to previous court decisions - a view that could make a vote to overturn the landmark abortion case easier to cast.

Outlook: With only a one-vote Republican Senate majority and three pro-choice Republican women pledging to take abortion into consideration during confirmation hearings, Mrs Barrett would be a risky pick for the Supreme Court. With an eye toward motivating the conservative base in the upcoming mid-term elections, however, Mr Trump may be itching for that fight. He might also like the historic nature of naming only the fifth woman to the US Supreme Court.

media captionExplaining Roe v Wade and abortion in US

Raymond Kethledge - the safe pick

Mr Kethledge may be a version of Mr Kavanaugh without some of the baggage but also without quite as weighty a judicial track record - a reflection of his time on the Sixth Circuit US Court of Appeals (covering much of the Midwest) and not the DC Circuit, which gets many of the juiciest legal battles.

image sourceC-SPAN
image captionRaymond Kethledge might have the easiest road to confirmation of the three reported finalists

Like Mr Kavanaugh, the 51-year-old Mr Kethledge is a former Kennedy clerk with some Republican political background. He served as judiciary counsel to Michigan Senator Spencer Abraham, before taking a law firm job.

Mr Kethledge is also a bit of a non-legal author, having co-written the 2017 book Lead Yourself First: Inspiring Leadership Through Solitude - which analyses the leadership qualities of such figures as Pope John Paul II, Martin Luther King Jr and current Trump Defence Secretary James Mattis.

The Michigan Law School graduate would also bring a bit of educational diversity to a court composed entirely of Yale and Harvard law alumni.

Outlook: Mr Kethledge would be a safe pick for Mr Trump, but he'd also be one without much flash. He's a jurist in the mould of Neil Gorsuch, Mr Trump's first pick for the Court in 2017 - who has established a solid reputation in conservative legal circles outside of the Washington, DC, pressure-cooker. The president has gone that route once before, so he may be looking to make a bigger splash this time around - even with a bruising confirmation fight looming.

Thomas Hardiman

It's hard to call the man who was the unofficial "runner-up" in Mr Trump's first Supreme Court sweepstakes a dark horse, but until the last few days Thomas Hardiman wasn't considered among the president's final contenders.

The 53-year-old was appointed as a district court judge by George W Bush in 2003 and elevated to the Third Circuit US Court of Appeals, which covers Pennsylvania, New Jersey and Delaware, four years later. During his time there, he has issued rulings on gun rights, religious freedom and law-enforcement powers that would probably please Mr Trump.

image sourceThomas Hardiman/Twitter
image captionUntil recently, Thomas Hardiman wasn't considered among the president's final contenders

He also has an appealing personal story, as the first member of his family to graduate from college, working as a taxi driver to save money for law school (his father, it should be noted, owned the company).

Like Mr Kethledge, he would represent a break from the recent Ivy League stranglehold on the Supreme Court, having earned his law degree from Georgetown University.

It also doesn't hurt that Mr Trump's sister, a judge who serves on the Third Circuit with Mr Hardiman, has reportedly sung his praises to the president.

Outlook: If Mr Kavanaugh is too establishment, Ms Barrett is too inexperienced and Mr Kethledge is too, well, boring, Mr Hardiman could end up as a decent compromise pick in the president's mind. Mr Trump seems to still be mulling his options, as the hours until his scheduled Monday night announcement dwindle. In the end, it doesn't matter who was the top contender yesterday or last week - only who comes out on top in the end.

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