U.S. Senator Mike Lee (R-UT), Judge Amy Comey Barrett, and Texas Supreme Court Justice Don Willett
From left: U.S. Senator Mike Lee (R-UT), Judge Amy Coney Barrett, and Judge Don Willett

The Trump Administration currently has a list of 25 potential jurists that President Donald Trump could choose from as a nominee to replace Supreme Court Justice Anthony Kennedy who will retire effective July 31st.

They are:

  • Amy Coney Barrett of Indiana, U.S. Court of Appeals for the Seventh Circuit
  • Keith Blackwell of Georgia, Supreme Court of Georgia
  • Charles Canady of Florida, Supreme Court of Florida
  • Steven Colloton of Iowa, U.S. Court of Appeals for the Eighth Circuit
  • Allison Eid of Colorado, U.S. Court of Appeals for the Tenth Circuit
  • Britt Grant of Georgia, Supreme Court of Georgia
  • Raymond Gruender of Missouri, U.S. Court of Appeals for the Eighth Circuit
  • Thomas Hardiman of Pennsylvania, U.S. Court of Appeals for the Third Circuit
  • Brett Kavanaugh of Maryland, U.S. Court of Appeals for the District of Columbia Circuit
  • Raymond Kethledge of Michigan, U.S. Court of Appeals for the Sixth Circuit
  • Joan Larsen of Michigan, U.S. Court of Appeals for the Sixth Circuit
  • Mike Lee of Utah, United States Senator
  • Thomas Lee of Utah, Supreme Court of Utah
  • Edward Mansfield of Iowa, Supreme Court of Iowa
  • Federico Moreno of Florida, U.S. District Court for the Southern District of Florida
  • Kevin Newsom of Alabama, U.S. Court of Appeals for the Eleventh Circuit
  • William Pryor of Alabama, U.S. Court of Appeals for the Eleventh Circuit
  • Margaret Ryan of Virginia, U.S. Court of Appeals for the Armed Forces
  • David Stras of Minnesota, U.S. Court of Appeals for the Eighth Circuit
  • Diane Sykes of Wisconsin, U.S. Court of Appeals for the Seventh Circuit
  • Amul Thapar of Kentucky, U.S. Court of Appeals for the Sixth Circuit
  • Timothy Tymkovich of Colorado, U.S. Court of Appeals for the Tenth Circuit
  • Robert Young of Michigan, Supreme Court of Michigan (Ret.)
  • Don Willett of Texas, U.S. Court of Appeals for the 5th Circuit
  • Patrick Wyrick of Oklahoma, Supreme Court of Oklahoma

This is an excellent list. President Trump has indicated that he wants a jurist who is young, a conservative and a constructionist. Here are three favorites (in order of preference) among this list that I think would make a spectacular nominee.

1. Amy Coney Barrett

Barrett, age 45 or 46, was recently confirmed by the U.S. Senate as a Judge on the U.S. Court of Appeals for the 7th Circuit. Barrett, you may remember, had a contentious nomination hearing where the Senate Judiciary Committee Democrats’ anti-religious bigotry was on display.

Perfect. First, after that hearing what else can be thrown at her? Second, if they try to smear her again, the Democrats will have overplayed their hand. The simple fact is she is now a member of the federal judiciary whom the Senate has already confirmed.

Arguments against her appointment will seem pretty weak.

She is a graduate of Rhodes College and Notre Dame Law School. Prior to serving on the bench, Barrett was a law professor at the University of Notre Dame. She also taught briefly at George Washington University and the University of Virginia. Barrett clerked for Judge Laurence Silberman on the D.C. Circuit and then the late Supreme Court Justice Antonin Scalia after graduating from law school. She also has experience in private practice at Miller, Cassidy, Larroca & Lewin in Washington, D.C. where she was part of the team who represented George W. Bush in Bush v. Gore.

She has been published in numerous law reviews for various topics including originalism, federal court jurisdiction, and the supervisory power of the Supreme Court. She also served six years on the Advisory Committee for the Federal Rules of Appellate Procedure after Supreme Court Chief Justice John Roberts appointed her in 2010.

2. Don Willett

Willett, age 51, was appointed and confirmed to the U.S. Court of Appeals for the 5th Circuit by President Donald Trump. Prior to this, he was appointed as an Associate Justice on the Texas Supreme Court by then Governor Rick Perry where he served for over 12 years. He is a proven advocate of individual liberty based on his opinions while serving on the bench.

He is a graduate of Baylor University and Duke University. Upon graduation from Duke, he clerked for Judge Jerre Stockton Williams at the United States Court of Appeals for the Fifth Circuit. He practiced employment and labor law at Haynes and Boone, LLP in Austin, TX for three years. He was also a senior fellow with the Texas Public Policy Foundation.

Willett also worked for George W. Bush’s presidential campaign and presidential transition team. He later served as Special Assistant to the President and Director of Law and Policy for the White House Office of Faith-Based and Community Initiatives. In 2002, Willett was appointed Deputy Assistant Attorney General for Office of Legal Policy at the United States Department of Justice. In 2003, he became Deputy Texas Attorney General for Legal Counsel under Texas Attorney General Greg Abbott (who is now the state’s governor).

Willett stated in a 2015 interview with The Weekly Standard: “Our Constitution exists to secure individual freedom, the essential condition of human flourishing. … Liberty is not provided by government; liberty preexists government. It’s our natural birthright, not a gift from the sovereign. Our founders upended things and divided power to enshrine a promise, not a process.”

Like Barrett, Willett has also recently gone through the Senate confirmation process.

3. Mike Lee

Lee, age 47, has served in the U.S. Senate since 2011 where he has been a reliable champion for individual liberty and limited government. He is a graduate of Brigham Young University, and after law school clerked for Supreme Court Justice Samuel Alito when he was a judge in the U.S. Court of Appeals for the Third Circuit.

He worked in private practice in Washington, D.C. before returning back to Utah where he served as an Assistant United States Attorney from 2002 to 2005. From 2005 to 2006 he served as general counsel for Utah Governor Jon Huntsman, and then returned to private practice in Washington, DC. He went back to Utah in 2010 at the height of the Tea Party Movement to run for U.S. Senate.

Service runs in his family. His father was the 37th Solicitor General of the United States. His brother, Thomas, serves on the Utah Supreme Court (and is also on President Trump’s list).

Joel Alicea, writing about Lee’s speech at Federalist Society National Lawyers Convention in 2012, said:

In the immediate aftermath of his 2010 election as the newest senator from Utah, Mike Lee spoke before a crowd of enthusiastic practitioners, scholars, and students at the Federalist Society National Lawyers Convention. Senator Lee focused on the role of Congress in constitutional interpretation, and he ended his remarks with the following pledge: “I will not vote for a single piece of legislation that I can’t reconcile with the text and the original understanding of the U.S. Constitution.” The senator’s statement rejected the idea that the Supreme Court is the only relevant constitutional interpreter in the federal system and struck at the heart of the “living Constitution,” the notion that the original meaning of the Constitution is not binding on today’s government officials. By requiring adherence to the original meaning of the constitutional text, Senator Lee sided with originalism. The late scholar Gary Leedes once complained that while originalists ask the federal judiciary to be originalist, they “permit the electorally accountable officials substantial leeway. The Congress can interpret the tenth amendment and the necessary and proper clause virtually as it pleases.” Senator Lee’s speech represents a forceful reply to Leedes’s challenge: Congress must be originalist, too.

Should Lee be nominated to the Court, it will be interesting to see how his Democratic colleagues respond. While Lee has been an advocate for a return to constitutional principles, he has also been a model of civility. Will that be reciprocated during a potential nomination process? I’m not going to hold my breath.

Conclusion

The entire list that the Trump administration has complied with the help, I believe, of the Federalist Society and Heritage Foundation is solid. The three prospects just happen to be my favorites. They have a solid track record, originalist, and fairly young.

Also, I think it would be refreshing to have a Supreme Court Justice who is not a product of an Ivy League Law School (Harvard, Yale, and Columbia are represented on the Court).

Update: CBS reports that Amy Coney Barrett, Raymond Kethledge, Brett Kavanaugh, Amul Thapar are on the President’s list to interview.

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