Home » Advice & Consent 2.02: And Then There Were Three

Advice & Consent 2.02: And Then There Were Three

Three judges emerge from The ListTM and we run down the names, some of the issues, and our best guess as to who will be named the next nominee for the Supreme Court.

Welcome to the Advice & Consent Podcast: news views and insight on the future of the supreme court. Shownotes and more are available at scotuscast.com. Email us at advice@scotuscast.com…. Check us out on Twitter and Facebook too. I’m Tim Mooney, joined by a member of the ragtag gang of the usual suspects… Adam Shah! Lena Zwarensteyn continues to be on assignment but says, “hey.”


The List has narrowed and the pace is blisteringly fast

POTUS and VP have met with several candidates and the list is reportedly down to a core three. Other reports are Don has already made his pick, and he’s just waiting to announce. Trump wants to make a big reveal, and if it starts to leak, he’ll announce early.


Brett Kavanaugh – 53, DC Circuit

  • former law clerk to Justice Kennedy
  • “a reliable conservative, he shows less appetite for upending the status quo on socially divisive issues,” but everything’s relative. He’s no Merrick Garland moderate.
  • Kavanaugh has declined to give his opinion on Roe, which doesn’t mean he isn’t, but it’s spooking some of the anti-choice groups. That said, he ruled against the immigrant woman who sought an abortion last year only to be overturned later.
  • Adam knows Judge Kavanaugh a bit better than most, so he’ll drop some more knowledge on him in a moment…


Raymond Kethledge – 51, 6th Circuit

  • former law clerk to Justice Kennedy
  • Best known as being a dyed in the wool originalist, and all that comes with that
  • Michigan guy (UM undergrad and law – hi Adam!)
  • Worked for Michigan Sen. Spence Abraham on the Judiciary Committee back in the day.
  • Another Chevron overturn guy?
  • Not a big flame thrower. Not an “exciting” guy.


Amy Coney Barrett – 46, 7th Circuit

  • former law clerk to Justice Scalia
  • Has a “flexible” approach to precedent
  • Notre Dame grad and prof – devout Catholic, and she’s written  in 1998, in the Marquette Law Review that judges generally should not be compelled to rule in ways that contradict their religious views and that Catholic judges might want to recuse themselves from some death penalty cases. What this says about abortion cases will certainly come up.
  • That and other writings led to a tussle in her confirmation hearing with Sen. Feinstein over role her faith has in her POV as a judge. Expect this to be an issue again.
  • WaPo article


Adam… thoughts on the three?

Kavanaugh has the Starr connection, and the Bush judicial nominee connection.

Kethledge: Abraham was, along with Ashcroft, the senator who pushed the hardest to block judicial nominees.

Barrett’s law review article is similar to what Scalia said.


Non-Prediction Predictions


Tim: I think it’s Kavanaugh unless the anti-choice group protests win the day, then Kethledge because it would be the smoothest. I think Barrett is in queue for RBG’s seat. But I am frequently wrong. All of that said, I think there’s a reasonable chance this shortlist is a smokescreen and the real choice is not in these three because Don loves a surprise.


Adam: Kavanaugh exudes loyalty and partisanship, which will appeal to Trump.


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