The Trump List of Possible Justices is Great but Two Names are Missing

COMMENTARY Election Integrity

The Trump List of Possible Justices is Great but Two Names are Missing

Dec 13th, 2016 4 min read
COMMENTARY BY
John Malcolm

Vice President, Institute for Constitutional Government

John is the Vice President for the Institute for Constitutional Government.

As director of the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation, I was inundated last week with interview requests regarding President-elect Trump’s “list” of potential Supreme Court justices, and about who from that list was likely to be chosen as his nominee to replace Justice Antonin Scalia.

One of those interview requests came from the New York Times — an interview I regret. Well, I should have known better. One reason why people wanted to interview me last week was because I had published my own list of eight individuals I thought would be superb Supreme Court justices. Six of those eight names ended up being included on the Trump list, and the President-elect has stated that he had received input from the Heritage Foundation and the Federalist Society. He most likely received input as well from several other very bright lawyers with connections to the conservative legal movement.

The list that President-elect Trump compiled is outstanding — 21 men and women (including 20 sitting judges) with a breadth of legal experience who have each distinguished themselves. And the list went a long way towards calming the nerves of many conservative voters who were skeptical about him, especially in a year in which, according to exit polls, as many as 70 percent of the voters indicated that Supreme Court appointments were an important or the most important factor in how they cast their vote.

And now to my New York Times interview. After asking me about the list, the reporter noted that the two names — Paul Clement and Judge Brett Kavanaugh — that were on it but not on the Trump list were people whom one might normally have expected to see on the short list for a Supreme Court vacancy in a Republican administration. He then asked if I had heard anything about why they were not on the Trump list.

A dear friend of mine once said to me, “You just missed a wonderful opportunity to say nothing.” I often hear his voice in my head, but on this occasion, I did not and, unwisely, spoke.

I said that perhaps Trump wanted to reach outside the Beltway for potential justices. I then said that, although I did not agree with these statements, I had heard a few (in fact, very few) conservative lawyers express concern about Paul Clement because he has never been a sitting judge and therefore does not have any judicial record to review.

I have never heard anyone criticize Paul Clement’s qualifications. He is well liked and well respected, deservedly so, throughout the entire conservative legal community. However, the reporter twisted my words, making it sound as if “we” (all conservatives, including me) felt that it would be too risky, in the absence of a judicial record to examine, to put Clement on the Court because he might somehow turn out to be another David Souter. That is not what I said, and nothing could be further from the truth.

I also said that I had heard some conservative lawyers criticize Judge Kavanaugh for an opinion he had written during the Obamacare litigation. They viewed it as “ducking” the critical issue involved in the case, but I said that I did not share that view.

When the Times article was published, the part about how I did not agree with any of these statements was somehow missing, thereby creating the clear impression that these were my views. In fact, I had heard these concerns expressed long before I decided to include Clement and Kavanaugh on my own list.

Since the article was published, I have received several calls from incredulous conservatives, and I would not be surprised if Clement and Kavanaugh have too. I sent a letter to the editor of the Times setting the record straight but am sure it was immediately deposited into the electronic dustbin.

Therefore, let me set the record straight here. I believe that Paul Clement and Judge Brett Kavanaugh would make outstanding Supreme Court justices, and here’s why.

Clement has an impressive pedigree — master’s degree from Cambridge, law degree from Harvard, clerkships with Judge Laurence Silberman and Justice Antonin Scalia, chief counsel on a Senate subcommittee, U.S. solicitor general — but that is just the beginning. Clement is a brilliant advocate, having argued more cases before the Supreme Court than anyone since 2000, an exceptional writer (and for what it’s worth, an engaging speaker). And through the cases he has undertaken in private practice (some on a pro bono basis) and the briefs he has written, he has demonstrated that he cares about important issues such as religious liberty and government overreaching in criminal cases.

And if anybody has doubts about Clement’s intestinal fortitude, all you need to do is read his letter of resignation from King and Spalding after the firm insisted that he drop his representation of the U.S. House of Representatives in its attempt to preserve the Defense of Marriage Act, to put those concerns to rest. In that letter, he stated:

I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side in a legal controversy are a profound threat to the rule of law. Much has been said about being on the wrong side of history. But being on the right or wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.

 

Granted, the odds were high that Clement was going to land on his feet, but, nonetheless, that took guts!

Judge Kavanaugh has a similarly impressive background — Yale law degree, clerkships with Judge Walter Stapleton, Judge Alex Kozinski, and Justice Anthony Kennedy; associate independent counsel; senior associate counsel and associate counsel to the president; and D.C. Circuit judge. In his writings, speeches, and opinion after opinion across a wide variety of areas (al-Bahlul, PHH Corporation, In re Aiken County, Loving), Kavanaugh has been clear, consistent, thorough, and thoughtful.

Through their speeches, writings, briefs, and opinions, Paul Clement and Brett Kavanaugh give every indication that they would be rigorous originalists and textualists. Both men have thought deeply about the all-important structural components of the Constitution: separation of powers and federalism. And both men exhibit an analytical clarity that would have made Justice Scalia proud.

None of this is to take away from the men and women on the list that President-elect Trump compiled. It is a fabulous list. I am only sorry that Paul Clement and Brett Kavanaugh were not on it. I hope that they get the serious consideration that they deserve if there is a future vacancy. And the next time the Grey Lady calls, I will pause and listen harder for that inner voice reminding me that there are times when the best course of action is to say nothing.

This piece first appeared in the National Review Online.