(Quin Hillyer, Liberty Headlines) After Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) raised eyebrows last week with a declarative statement that he expects another Supreme Court spot to open this summer, speculation about who might retire and who might replace the retiree has noticeably ramped up.
The idea of a second high court opening in 2017 is not new; Conservative U.S. Senator Ted Cruz (R-Texas) predicted as much at the Conservative Political Action Conference in February. But Cruz’s comment came in passing while making a broader point, and sounded more like guesswork. Grassley’s remark to Iowa constituents last week sounded more definitive – and, coming as it did from the chairman of the committee with direct jurisdiction over court nominations, it was received in some quarters as if Grassley spoke from inside knowledge.
“If there is anybody in congress who would know about such things, it is Chuck Grassley,” reported ABC’s Jonathan Karl last week.
Karl said the rumors are that Justice Anthony Kennedy, a centrist appointed in 1987 by Ronald Reagan, “has been telling friends and colleagues that he intends to retire this year, possibly after the current term of the Supreme Court is up on June 30.” For months before that speculation ran rampant that Kennedy would be happy to see his former clerk Neil Gorsuch appointed to the Supreme Court by President Trump, and that Gorsuch’s ascension would reassure Kennedy that Trump can be trusted to make a top-notch selection.
Kennedy performed the swearing-in at Gorsuch’s public investiture to the high court.
Kennedy isn’t the only justice subject to retirement speculation. Ruth Bader Ginsburg is 84 and twice a survivor of cancer. Stephen Breyer is 79. Liberals are particularly worried about Ginsburg’s health, with one activist hoping that the justice eats “more kale” in order to stay fit.
But with most eyes focused on Kennedy, the educated guessing has started in earnest about who Trump would choose to replace the justice most known for unpredictably straddling the fence between the court’s conservative and liberal wings. On Monday April 23, an article in The Hill listed five people as among the most likely nominees. One is another former Kennedy clerk, Raymond Kethledge, a 50-year-old federal appeals court judge who spent most of his professional career in Michigan. Another is William Pryor, a finalist for Trump’s first choice and a protégé of Attorney General Jeff Sessions and favorite of Ed Meese, the longtime close adviser to former President Ronald Reagan.
Paul Clement is a former U.S. solicitor general who won the famous Hobby Lobby religious-liberty case; Brett Kavanaugh, yet another former Kennedy clerk, is an appeals court judge who served in George W. Bush’s White House and who has a reputation for bipartisan comity; and Thomas Hardiman is the Pennsylvania-based appeals court judge who reportedly was the top runner-up when Trump chose Gorsuch.
But Grassley said he thinks it likely a woman will receive serious consideration. In that light, Diane Sykes of Wisconsin was one of the few judges personally interviewed by Trump last time, and Michigan Supreme Court Justice Joan Larsen clerked for the late Justice Antonin Scalia, who was listed as the model justice by Trump himself.
Finally, perhaps the biggest buzz (including information in background interviews conducted by this reporter) surrounds Amal Thapar, the only federal district court judge considered by Trump for the spot that eventually went to Gorsuch. After Trump chose Gorsuch for the high court, he made Thapar one of his first nominees for an appeals court judgeship, and put him on a fast track: Those nomination hearings for Thapar begin Wednesday morning.
Thapar is the son of immigrants from India. He has a long background as a federal prosecutor, and is a particular favorite of Senate Majority Leader Mitch McConnell, who carries great weight and may expect deference from Trump after so steadfastly pushing Gorsuch through to confirmation.
As reported in The Hill last month, “The fact that Trump has named Thapar as his first lower-court nomination lends support to the idea that Thapar is a front-runner for a second Supreme Court vacancy, were one to open.”
Thapar is one of the judges whose clerks are then chosen for similar posts by conservative higher-court judges – an indicator, to court watchers, of the respect in which a lower-court judge is held.
No matter who Trump picks, the choice is favored to be confirmed, now that the Senate has changed its rules so as not to allow a court nomination to be killed by a filibuster.