Monday at 9pm EST will be must viewing when the President, from the East Room of the White House, announces his pick to succeed Anthony Kennedy on the Supreme Court. It will be Trump’s second pick in two years, and it represents an opportunity for him to fundamentally alter the course of history.
When he filled the seat once held by Antonin Scalia with Neil Gorsuch, the Court was not markedly changed. Notwithstanding that the seat should have gone to President Obama’s pick, Judge Merrick Garland, the replacement of one conservative with another did not alter the Court’s composition.
But this time is different.
Despite being appointed by Ronald Reagan, Anthony Kennedy was not always a reliably conservative vote. As has been noted countless times, he was so often the swing vote, the 5th and deciding jurist on a court comprised of nine.
But if President Trump replaces Justice Kennedy with a more consistent conservative, the future direction of the court will be altered. 5 to 4 decisions with an unknown outcome will then more predictably be decided by 6-3 margins.
The question now is who he will select. And in making a decision, he must select between competing elements of his own constituency.
Might he select a traditional, mainstream conservative, or someone who caters more to support among religious fundamentalists? Will he go with a compromise middle-American from Michigan? Perhaps the also-ran from the last time, a judge in Pennsylvania?
The mainstream conservative is Judge Brett Kavanaugh of the prestigious DC Circuit Court of Appeals, often a farm team for the Supreme Court. He’s a former clerk for Justice Kennedy and also worked in the George W. Bush White House. But that he once worked for Ken Starr and opined that a president’s words can be used against him in a case for obstruction of justice might be an impediment for Trump, given the investigation the president faces from Robert Mueller.
The religious fundamentalist is Judge Amy Coney Barrett, a former University of Notre Dame law professor who now sits on the 7th Circuit Court of Appeals based in Chicago. Said to be the choice of social conservatives from outside the Beltway, this mother of 7, two adopted from Haiti, is a member of the charismatic Catholic group called People of Praise. She once clerked for Antonin Scalia.
Any consternation by the President as between Kavanaugh and Barrett might clear a path for a compromise candidate – Judge Raymond Kethledge, of the 6th Circuit Court of Appeals based in Michigan. Like Kavanaguh, he too clerked for Kennedy. Or maybe Thomas Hardiman, from the 3rd Circuit Court of Appeals based in Philadelphia. He is said to have been the runner-up to Gorsuch last time.
Those are the reported four finalists, although with President Trump one never knows who’ll be the last to be voted off the island.
Here are the most important stats about these potential justices:
Kavanagh is 53. Barret is 46. Kethledge is 51. And Hardiman is 52.
There appears one certainty: President Trump is about to nominate someone who could easily serve three decades on the Court, further bolstering his standing – for better or worse – as the most consequential president of the modern era.