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Rampant Speculation Over a Supreme Court Pick

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Rampant Speculation Over a Supreme Court Pick SPECIAL REPORT CQ LEGISLATIVE PREVIEW JANUARY 9, 2017 GOP RIDES THE WAVE LEGAL AFFAIRS ||| GAME OF ROBES Rampant speculation over a Supreme Court pick By TODD RUGER Appointing an outsider could fulfill prom- Gorsuch’s rise: The poll has faced “coor- ises to “drain the swamp” in Washington. dinated and sophisticated efforts to flood website dedicated to the An insider could smooth what promises to certain judges with votes from ostensibly Supreme Court’s closest be a bumpy Senate confirmation process in unique IP addresses,” Blackman said. (Rus- A watchers launched a new poll a chamber where Trump’s party only holds sia? Is it Russia? Blackman’s not saying, yet.) when Donald Trump won the 52 seats. A hard-right conservative could There aren’t many clear signals coming White House, tapping the legal communi- annoy Senate Democrats the most. from Trump or his transition team. Trump ty’s wisdom on who the Republican would “Who knows what Trump will do?” says told Sean Hannity of Fox News in Decem- choose from his list of 21 potential nominees Josh Blackman, a professor at the South ber that he narrowed down his choices to to fill the vacancy on the high court. Texas College of Law in Houston who creat- “probably three or four” candidates. Two And why not? Back in 2010, visitors to ed the site. “But we do know he loves polls!” weeks later, incoming White House Chief of FantasySCOTUS — think fantasy football More than 2,500 votes cast in this latest Staff Reince Priebus said Trump hasn’t in- but for the high court — correctly predicted poll, called the FantasyJustice market, terviewed any candidates and would make that President Barack Obama would select somewhat surprisingly gives the edge to an announcement closer to his inauguration Elena Kagan to fill the seat of retired Justice U.S. Circuit Judge Neil Gorsuch of Colo- on Jan. 20. John Paul Stevens. rado, a George W. Bush appointee. That If Trump doesn’t use the FantasyJustice Trump is widely believed to be the first selection is possible, of course. Trump’s im- market to guide his Supreme Court selec- presidential candidate to release such a list probable win left behind a pile of discarded tion, here are five approaches he might use of potential Supreme Court picks before predictions based on conventional political to narrow the field and the potential picks an election, and there are a number of ap- wisdom as high as Trump Tower. who would fit them: proaches he could use to make his final pick. But there’s another potential reason for CQ | JANUARY 9, 2017 45 ||| LEGAL AFFAIRS TRUMP’S A FAVORITE AN OUTSIDER William Pryor, 54, Alabama Joan Larsen, 48, Michigan BENCH Diane Sykes, 58, Wisconsin Allison Eid, 51, Colorado A discussion about Trump, a Washington out- PRESS Trump’s most likely picks sider, repeated the mantra must include two federal ap- “drain the swamp” during peals court judges appointed the final weeks of his cam- by Bush who are popular Pryor paign. If that meant chang- Larsen among conservatives. ing the status quo, then the During primary debates in Supreme Court would be February, Trump mentioned one place to start. by name William H. Pryor The current Supreme Jr. of Alabama, who sits on Court justices lack diversity the 11th Circuit, and Diane S. in several ways. They all Eid Sykes of Wisconsin, who sits Sykes attended Ivy League law on the 7th Circuit. schools, and all but one That suggests Trump is most familiar with served as a federal judge before their appoint- those names. Pryor and Sykes also topped Black- ment. They are all either Catholic or Jewish. man’s poll of The Federalist Society’s annual And the middle of the country is left out: five conference in November. The conservative are from New York or New Jersey, two from group, which helped Trump put together his list California and one from Georgia. of 21 names, has Trump’s ear. Its executive vice Michigan Supreme Court Justice Joan Larsen president, Leonard Leo, met with Trump after and Colorado Supreme Court Justice Allison the election at Trump Tower and said he expects Eid would break those patterns. Trump to stick to the list of 21 judges. Eid went to the University of Chicago Law Pryor and Sykes could also be good choices if School and was Colorado’s solicitor general Trump wants to pick a fight with Senate Dem- and a law professor before her appointment in ocrats, who would need only 41 votes to use 2006. a filibuster to thwart Trump’s Supreme Court Larsen got her law degree from Northwest- pick. That could prompt Senate Republicans ern University School of Law and was a law to eliminate the filibuster for Supreme Court professor at the University of Michigan before nominees, as Senate Democrats did in 2013 for her appointment in 2015. other federal judicial picks. Both have conservative credentials. Eid Liberal groups criticize Sykes, a former Wis- clerked for Justice Clarence Thomas, who consin Supreme Court justice confirmed by the pushed for her nomination to the Colorado Senate to the federal bench on a 70-27 vote in Supreme Court. Larsen clerked for Justice An- 2004, for decisions on voting rights, gay rights tonin Scalia, whose death in February left the and birth control. current vacancy on the high court. Trump said Pryor, formerly Alabama’s attorney general, Scalia would be his model for a court pick. was one of seven Bush appeals court nominees A bonus: Picking a woman would put four that Democrats blocked via filibusters, but he women on the Supreme Court for the first time. eventually got a vote after the Gang of 14 struck a deal in 2005. Pryor’s critics at the time were troubled by his views on abortion rights, gay rights and environmental law. He was con- firmed on a 53-45 vote in 2005. One of Pryor’s defenders in the Senate was Republican Sen. Jeff Sessions of Alabama, Trump’s pick to be attorney general who has fostered a close relationship with the president-elect. 46 JANUARY 9, 2017 | CQ LEGAL AFFAIRS ||| AN ENTERTAINER AN INSIDER A HAWKEYE Don Willett, 50, Texas Mike Lee, 45, Utah Steve Colloton, 53, Iowa Ted Cruz, 45, Texas Edward Mansfield, 59, Iowa Texas Supreme Court Justice Don Wil- Trump has looked to Senate Judiciary lett took to Twitter one the Hill for several of his Chairman Charles E. day in the nascent days Cabinet picks, and he’s Grassley of Iowa is a of Trump’s presidential got a sitting senator on main reason there’s still campaign: his list that many think a Supreme Court vacan- Lee Colloton “Donald Trump would make a good cy for Trump to fill. haiku— Supreme Court justice. The 83-year-old Who would the Sen. Mike Lee of farmer stood up to pres- Donald Utah expressed a lack sure from Democrats Name to #SCOTUS? The mind reels. of interest in being in- for months and refused *weeps — can’t finish tweet*” cluded on Trump’s list, Cruz to hold confirmation Nearly a year later, Willett would but he did go to Trump hearings for Merrick Mansfileld appear on Trump’s initial list of potential Tower in December to Garland, who President Supreme Court nominees. The mind reels meet with the president-elect. Lee’s inclu- Barack Obama nominated in March to fill indeed, but Willett’s inclusion also makes sion as a potential court pick in September Scalia’s seat. sense for a president-elect who himself was a central part of why Sen. Ted Cruz, Grassley easily won re-election, re- goes on Twitter to deliver messages ap- a former GOP presidential rival, changed mains chairman of the committee and has parently with no filter. gears and backed Trump. a focus on the interests of Iowans. Trump Willett’s Twitter feed, mixing cultural Not only would a senator have an could simultaneously reward Grassley for references and family moments, has advantage in the confirmation process, holding open the Supreme Court slot and earned him an impressive 71,400 follow- Lee has conservative legal bona fides that guarantee his full support by picking one ers on the social media site. It’s clearly a would put him on many lists of potential of the potential nominees from Iowa. direct-to-the-people style that Trump, court nominees by a Republican presi- Steve Colloton, a Yale Law School with 18.8 million followers, embraces. dent. His father, Rex Lee, was a solicitor graduate and former federal prosecutor, And Trump’s consideration of former general during the Reagan administra- is on the U.S. Court of Appeals for the 8th rivals for his Cabinet shows that’s not an tion. The senator sits on the Judiciary Circuit. automatic disqualifier — even if Willett Committee, remains a regular visitor to Edward Mansfield, also a Yale Law was a repeat offender. the Supreme Court and is eager to talk School graduate, was appointed to the During the NCAA men’s basketball about constitutional law. Iowa Supreme Court in 2011 by Gov. Terry tournament in March, Willett tweeted a Cruz isn’t on the list, but the former Branstad, Trump’s choice to be ambassa- gif of pop music star Taylor Swift getting Texas solicitor general has experience dor to China. hit in the head with a basketball, along arguing before the Supreme Court. And In a news conference in Iowa after the with a parody of Trump’s Twitter style: he met with Trump during the transition, election, Grassley said it’s not his personal “Low-energy Trump University has and was coy when asked about whether mission to see an Iowan put on the Su- never made it to #MarchMadness.
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