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It’s Time for Trump to Update His Supreme Court Short List

September 23, 2019 in Economics

By Ilya Shapiro

Ilya Shapiro

One of the key innovations of Donald Trump’s 2016 campaign was his public list of potential Supreme Court nominees. After Justice Antonin Scalia’s passing thrust the court into the forefront of the presidential election, candidate Trump produced a list of judges that held the Republican coalition together and ultimately attracted swing voters in key states.

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Three years later, after appointing two justices, the president heads into a reelection campaign where the Supreme Court is no less of an issue. Eighty-six-year-old Justice Ruth Bader Ginsburg’s recent cancer treatment is just the latest health concern this leftist icon has faced. She’s vowed to outlast the current president, but if Trump is reelected, the odds seem to be against her. And don’t forget that Justice Stephen Breyer is 81 years old.

So it would be both smart politics and good governance to update the list of SCOTUS contenders. When a vacancy emerges, whether before or after the election, who will be considered?

Let’s start with the old list of 24 judges: the original 11 from May 2016, another 10 added that September, and another five added in 2017, minus Neil Gorsuch and Brett Kavanaugh. From that group, subtract the six who are older than 60; when longevity is the coin of the realm, you’re not gonna see a repeat of Justice Ginsburg, the only sexagenarian to join the high court in nearly 50 years (not counting the unsuccessful nominations of Robert Bork, Harriet Miers, and Merrick Garland).

Also remove the two young’uns, Eleventh Circuit Judge Britt Grant (41) and Oklahoma district judge Patrick Wyrick (38). I think the world of these two, and they’re perfectly suited to be federal judges, but it’s just too early to elevate them.

That leaves 16, but before we start evaluating them, let’s pause and take into account the last three years. A lot has changed, including President Trump’s record number of appointments to the circuit courts of appeal.

Among those who don’t already appear on the list, I would add the following superstars: Third Circuit Judge Stephanos Bibas, Fifth Circuit Judge James Ho, Fifth Circuit Judge Andrew Oldham, D.C. Circuit Judge Neomi Rao, and my dark-horse, Walmart general counsel Rachel Brand (previously associate attorney general, the number-three Justice Department official, and destined for future high office, judicial or otherwise). Of those, the erudite …read more

Source: OP-EDS

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