President Trump has announced that on Thursday of next week he will name his pick to replace the late Antonin Scalia on the United States Supreme Court.
It appears that Trump has narrowed his choice to two or three finalists:
“I’ll be making my decision this week, we’ll be announcing next week,” Trump said, after meeting Tuesday with Senate leaders from both parties to discuss the vacancy. “We’ll pick a truly great Supreme Court justice.”
This, as sources close to the selection process tell Fox News the list of possible candidates is now down to three names, all of them federal appeals court judges: Judge William Pryor in Alabama, Judge Neil Gorsuch in Colorado, and Judge Thomas Hardiman in Pennsylvania.
All three of these judges are legal superstars. For example, from Jonathan Adler at the Volokh Conspiracy:
Any of these choices would set a high bar for Chris Sununu when his turn comes in July of this year and October of next year to nominate justices to the New Hampshire Supreme Court. Sununu’s nominations will be a large part of determining his legacy.
Sununu is at a significant disadvantage when compared to Trump, however, when it comes to picking conservative justices.
First, let’s clarify that a judicial conservative is a completely different animal from a judicial liberal and from a political conservative. A judicial liberal is a judge who whenever possible will reach a liberal political result. Essentially, the judicial liberal decides what the “right result” is and then strives to find some plausible way to reason backwards to that result.
A political conservative describes someone’s political leanings, not his or her philosophy of judging. For example, Justice Scalia, while very politically conservative, reached liberal results in many cases. For example, ruling that burning the American flag was constitutionally protected free speech. What made Scalia a judicial conservative was his philosophy of judging – an originalist when it came to interpreting the constitution (giving constitutional provisions the public meaning they had at the time of their adoption) and a textualist when it came to interpreting statutes (discerning legislative intent from the words of the statute, not from extra-textual sources like “legislative history”).
The three judges on Trump’s short-list are all appeals court judges with extensive paper-trails, including judicial opinions, articles and lectures. These paper-trails allow Trump’s team to determine the judicial philosophy, and the reasoning and writing abilities of the judges.
In contrast, Sununu doesn’t have a similar “bench” from which to draw. New Hampshire does not have an intermediate appellate court. Rather, appeals are directly from the trial courts to the State supreme court. The majority of the work of a trial court judge tells us very little about the judge’s judicial philosophy and whether the judge is otherwise qualified for the supreme court. Thus, if Sununu wants to tap an lower court judge to fill the upcoming vacancies, he will not have the benefit of the paper trail that Trump has had in filling the Scalia seat.
Moreover, with the exception of two years, 2003-2004, the Democrats have held the corner office and have been appointing judges for the past twenty years. The three judges on Trump’s short-list, in contrast, were all appointed by President George W. Bush. It’s safe to say that the Democrat Governors who preceded Sununu were not looking to appoint judicial conservatives to the bench.
So Sununu is going to have to look outside the bench if he wants to put judicial conservatives on the New Hampshire Supreme Court. It is imperative that he understand that a political conservative is not necessarily a judicial conservative. And that a nominee who does not present himself or herself as a judicial conservative, i.e. an originalist and a textualist, and is able to explain why it is important that a judge be a judicial conservative will, once exposed to the rarified air in Concord, begin moving to the left.
The ideal candidate would be someone with a paper trail. So Sununu will not have to wonder if the candidate is just talking the talk to get nominated, but will not walk the walk if confirmed.
No more Souters.