On Wednesday, Donald Trump finally released a list of 11 candidates he'll consider to replace the late Supreme Court Justice Antonin Scalia. The release followed months of promises from the Trump camp to put out a list, with no follow-through. And judging from the list, he perhaps should have given himself a little more time to do the research; one of his picks has sent a bevy of tweets mocking and opposing Trump.
Overall, though, it's largely a list of solidly conservative justices who'd be on most Republican nominees' shortlists for the Court. It includes six federal appellate judges; every member of the Supreme Court currently save Elena Kagan served on a federal appellate court first. The other five on the list are state Supreme Court justices, a background currently missing from the court. All 11 are reasonably plausible nominees, who will likely reassure judicial conservatives wary of letting Trump pick Scalia's successor.
Current position: Federal appellate judge (Eighth Circuit Court of Appeals)
Why Trump picked him: Steven Colloton has been thrown around as a potential future Supreme Court justice before (when Mitt Romney was running for president, for example). He was also featured prominently in a March article by the Heritage Foundation's John Malcolm, who named Colloton one of a handful of people most likely to be "the next Supreme Court Justice."
Colloton is reliably conservative, if not (usually) in a particularly headline-grabbing way. He worked in George H.W. Bush's Justice Department, clerked for former Supreme Court Chief Justice William Rehnquist, and worked in the special prosecutor's office during the Whitewater investigation. As a judge, he's upheld a local law banning unauthorized immigrants from renting apartments (something that might particularly appeal to Trump) and written a law review article defending the rights of single-sex college student organizations.
He's the sort of judge who is extremely well-regarded by the people who like him. Colloton's colleagues have called him a "virtual walking encyclopedia." The high opinion of him isn't universal: One former colleague said he would be "well-advised to polish his interpersonal skills," which might offer a clue as to why Trump likes him. But another colleague described Colloton as "formal, traditional, and scrupulously respectful of rules, process, and the dignity of proceedings" — which makes one wonder how much he likes Trump.
Current position: State Supreme Court justice (Colorado)
Why Trump picked her: Allison Eid is definitely a conservative: She clerked for Justice Clarence Thomas, worked for William Bennett when he was Ronald Reagan's secretary of education, and served as solicitor general under Republican Colorado Gov. Bill Owens. When Owens nominated her to the Colorado Supreme Court in 2006, he praised her conservative bona fides.
But Eid isn't a bomb thrower. She appears to have kept her head down on the state Supreme Court, and she's widely respected by her peers: When she was up for reelection (called "retention") by the state's voters in 2008, the Colorado Office of Judicial Performance Evaluation backed her strongly — and more than 90 percent of attorneys and judges said she should stay on the bench. (She was reelected with 75 percent of the vote.)
The Supreme Court doesn't have many justices with state court experience, and Eid would be an interesting choice to fill that gap: Not only is she a state Supreme Court justice herself, but she's also defended the importance of "state constitutional law" in a speech for the Federalist Society. On a court where "federalism" and "judicial restraint" are often used by conservative justices to fight back against federal "overreach," Eid's background might be useful. Then again, in a Trump administration, a defender of federalism might not be the asset the president would like.
Current position: Federal appellate judge (Eighth Circuit Court of Appeals)
Why Trump picked him: Some justices become unpleasant surprises for the presidents who nominate them (perpetual swing vote Anthony Kennedy was appointed by Ronald Reagan). But it's pretty darn clear that Raymond Gruender is a reliably conservative judge.
He's consistently ruled on the pro-life side of abortion cases — which these days usually means upholding state laws putting restrictions on abortions and those who seek them. He's written an opinion upholding a law that requires abortion seekers to be told they're terminating the life of a human being, and argued for the constitutionality of a law requiring them to be warned of the risk of suicide (medical professionals say there isn't evidence of this). He also wrote a 2005 opinion arguing that federal anti-discrimination law didn't require employers to include contraceptives in health care coverage — a ruling that conservatives have cited heavily in the current fights over contraceptive coverage in the Affordable Care Act.
As a circuit court judge, he was the key figure in ending the federal government's oversight of the Little Rock School District under civil rights law during the administration of George W. Bush. When the school district tried to remove federal oversight in 2006, Gruender dissented from his colleagues (who ruled that oversight should be kept in place), claiming that the federal government was trying to change the standards the school district had to meet.
When the case got sent back down to district court, the lower court agreed with Gruender — and on appeal, his own court agreed with him as well. (One lawyer claimed Gruender had rejected a standard he himself had proposed in order to stay on the same side of the case.)
Gruender is also a former federal prosecutor; while his reign as US attorney for the Eastern District of Missouri reputedly focused on white-collar crime, he was also a vocal defender of the anti-terrorism policies of then-Attorney General John Ashcroft in the early days of the war on terror. When University City, Missouri, passed a local ordinance defending civil liberties and authorizing city employees not to take part in activities that violated them, Gruender said the city was putting "lives in jeopardy" and would be responsible for "catastrophic loss of life."
Current position: Federal appellate judge (Third Circuit Court of Appeals)
Why Trump picked him: Donald Trump's been known to say that "the police in our country do not get respect." That is assuredly not Thomas Hardiman's fault.
On the Third Circuit, Hardiman has consistently sided with law enforcement against defendants and inmates. He ruled that a policy of strip-searching jail inmates didn't violate the Fourth Amendment's protections against unreasonable search (an opinion the Supreme Court upheld). He's also written, in dissent, that the First Amendment does not give citizens the right to tape police — something with which every state in the union currently disagrees.
Hardiman's pre-judicial career is full of the kinds of things liberals and Democrats don't like: He donated to Republican candidates before being appointed to the bench (something that is neither illegal nor, to most legal experts, a big deal), and he represented plenty of political clients and political cases while he was in private practice. Most of this is insignificant: Just like it's a defense lawyer's job to defend murderers, it's a civil lawyer's job to defend companies accused of discrimination.
But it's ironic that one of Hardiman's most high-profile cases was a housing discrimination case against a company accused of conspiring to keep out low-income clients — given that the president who might appoint him to the Supreme Court, early in his own career, settled a housing discrimination suit of his own against the federal government.
Current position: Federal appellate judge (Sixth Circuit Court of Appeals)
Why Trump picked him: Raymond Kethledge appears to be the kind of judge who very much enjoys telling people why they're wrong.
In 2014, he wrote an opinion upholding the use of credit checks to screen potential Kaplan employees, defending the company from an Equal Employment Opportunity Commission lawsuit. The opinion noted, pointedly, that use of credit checks was permitted by the EEOC's own guidelines — an act of gotcha jiujitsu that was praised by the Wall Street Journal. More recently, in a case involving the IRS's alleged persecution of conservative political groups, Kethledge forcefully ordered the agency to turn over information — and rejected the tactic it had tried to use in its defense as an "extraordinary remedy" not appropriate for a suit like this.
But if you're picturing Kethledge as a mini Scalia, all flashy rhetoric and black-and-white conservative principle, you're off the mark. He was a Senate Judiciary Committee staffer under Michigan Republican Spencer Abraham in the 1990s, but Abraham, while a founder of the Federalist Society, was also a pro-immigration Arab American who lost (to Debbie Stabenow) after being attacked as a terrorist sympathizer. And during his confirmation hearings before the committee in 2003, he emphasized his pro bono work with criminal defendants and low-income residents trying to keep their homes.
A 2013 Kethledge opinion, which is already being cited outside his home circuit, says "there are good reasons not to call an opponent's argument 'ridiculous'" — not the least of which, he elaborates, is that you might be wrong. It's hard to imagine hearing that sentiment from Scalia — or from the presidential candidate now offering to appoint Kethledge to the highest court in the land.
Current position: State Supreme Court justice (Michigan)
Why Trump picked her: Judicial conservatives have historically believed in a restrained executive. Donald Trump very much does not.
Then again, neither did President Bush. So Trump could do worse than to appoint someone who worked in the Office of Legal Counsel during Bush's administration — and wrote one of the legal memos on which he based his administration's activities in the early days of the war on terror.
Joan Larsen was a deputy assistant US attorney general from 2002 to 2003. While that's the period during which the Office of Legal Counsel (led by John Yoo) churned out memos authorizing waterboarding and other forms of torture, Larsen claims she didn't have the security clearance to know anything about those. She did, however, write a memo about indefinite detention — one that still hasn't been released to the American Civil Liberties Union, despite a lawsuit.
Larsen has some experience in the judicial branch: She was a clerk for Antonin Scalia himself before going to the executive branch. (After his death, she wrote a eulogy for the New York Times in which she said her proudest moment was persuading him "that a criminal defendant should win a case that none of the justices originally thought he should win.") She was appointed by Michigan Gov. Rick Snyder to the state's Supreme Court in 2015. Between the two, she taught constitutional and criminal law at the University of Michigan and served as counsel to the dean.
But it's her brief time in the executive branch that raised eyebrows when Snyder appointed her to Michigan's highest court, and it's hard to imagine that someone with less than a year's experience as a judge wasn't selected with her service to the Bush White House in mind.
Current position: State Supreme Court justice (Utah)
Why Trump picked him: The brother of US Sen. Mike Lee and the son of Reagan Solicitor General Rex Lee, Thomas Lee, 51, has been on the Utah Supreme Court since his appointment by Gov. Gary Herbert in 2010. A former clerk to Clarence Thomas and influential conservative appellate judge J. Harvie Wilkinson III, he was previously a law professor at Brigham Young University and an attorney in private practice specializing in intellectual property.
Lee is Utah political royalty, and his family has a sterling reputation in conservative legal circles, which doesn't hurt his prospects. But should he get picked for SCOTUS, a couple of inflammatory concurrences he wrote might come back to haunt him. In the case of Carranza v. United States, in which two parents sued the federal government for wrongful death after a stillbirth, he filed a concurrence agreeing that fetuses should count as "minor children" for the purpose of wrongful death suits. The decision didn't touch on abortion specifically, but contributes to a trend, troubling to pro-choice advocates, of treating fetuses like born persons.
In State v. Walker, he argues that the Utah state constitution contains no basis for the exclusionary rule, the principle that evidence obtained through unlawful searches can't be used in trial. Judicial conservatives have wanted to do away with the federal exclusionary rule for years, and this suggests Lee may join such an attempt if appointed to SCOTUS.
More troubling still for liberals, his concurrence includes a stirring defense of originalism:
It should go without saying that our construction of a provision of the constitution must rest on the original meaning of the constitutional text. Originalism is more than just "the dominant form of constitutional interpretation during most of our nation’s history." It is a theory that is essential to any system of government that finds its legitimacy in the will of the people as expressed in positive laws enacted by their representatives. Such systems rightly presume that the rules of law adopted by our representatives remain in force and are worthy of respect until they are repealed or amended by the due processes designated for that purpose.
Current position: Federal appellate judge (11th Circuit Court of Appeals)
Why Trump picked him: Pryor has been on Trump's shortlist at least since the February 13th GOP presidential debate, where he came up as an example of the kind of justice Trump would like to appoint. Pryor, 54, probably has the biggest national profile of anyone on this list due to his staring role in the 2005 showdown between President Bush and Senate Democrats over judicial appointments.
He was initially nominated in 2003 and faced fierce opposition for his unusually strident and blunt recitation of conservative dogma. Asked about a statement he made calling Roe v. Wade "the worst abomination in the history of constitutional law," Pryor said, "I stand by that comment. I believe that not only is [Roe] unsupported by the text and structure of the Constitution, but it has led to a morally wrong result. It has led to the slaughter of millions of innocent unborn children."
He also, as attorney general of Alabama, wrote an amicus brief urging the Supreme Court to uphold laws banning sodomy and, in the words of Sen. Russ Feingold (D-WI), "equated private, consensual sexual activity between homosexuals to prostitution, adultery, necrophilia, bestiality, incest and pedophilia." He also purposely rescheduled a family trip to Disney World to avoid attending during "Gay Day," lest his children see gay people enjoying theme park rides.
Pryor eventually got a recess appointment to the 11th Circuit in February 2004, and was finally officially confirmed in 2005 as part of the "Gang of 14" compromise. In his position he's mostly been a doctrinaire conservative, the most notable exception being a ruling arguing that discrimination against trans people violates the Equal Protection Clause.
Current position: State Supreme Court justice (Minnesota)
Why Trump picked him: Stras, 41, is the youngest person on this list, and would be among the youngest appointees to the Court ever, even younger than Clarence Thomas, who joined the court at 43. Stras joined the Minnesota high court in 2010 at age 36, after being appointed by Gov. Tim Pawlenty. Prior to that he worked as a law professor at the University of Minnesota and clerked for Thomas and two federal appellate judges.
Stras attended the University of Kansas Law School, which would make him the only Supreme Court justice to not attend Harvard or Yale law school at any point, arguably adding a valuable form of diversity. He'd be only the second Jewish justice appointed by a Republican, after Benjamin Cardozo.
Stras's campaign site stresses his view that judges should "faithfully interpret and apply the Constitution and laws passed under the political process, not follow their own political leanings or personal preferences." A retrospective from his former colleagues at the University of Minnesota identifies a few controversial stands he took as an academic. He supported life tenure for federal Supreme Court justices but bigger pensions to induce earlier retirements, and he wanted Supreme Court members to sit on appellate courts more regularly.
But he apparently didn't openly and clearly state many controversial opinions on how specifically the Court should rule, the way others on this list have.
Current position: Federal appellate judge (Seventh Circuit Court of Appeals)
Why Trump picked her: Like Pryor, Sykes, 58, has been cited by Trump as a potential pick since the February 13 GOP presidential debate. She was elevated to the Seventh Circuit by President Bush in 2004 after five years on the Wisconsin Supreme Court. Trump is hardly the first one to float her as a SCOTUS possibility. ABC News's Jan Crawford Greenburg identified her as being on Bush's shortlist in 2007, should another seat become available; she was viewed as "conservative but less controversial" than some more outspoken options. Jeffrey Toobin included her on a 2014 list of the "GOP farm team" for the court.
Among Sykes's notable appellate decisions are a ruling against Chicago's ban on firing ranges on Second Amendment grounds; a decision barring enforcement of the Obamacare birth control mandate on religious liberty grounds; a decision in favor of Wisconsin's restrictive voter ID law; and a ruling arguing that student organizations that ban gay members have a constitutional right to funding from public universities.
That last ruling has provoked the most scrutiny, with ThinkProgress's Ian Millhiser noting, "Sykes’ opinion went so far as to deny that the anti-gay organization at issue in this case engaged in prohibited discrimination at all, because it made an exception to its discriminatory policies for gay people who refrain entirely from having sex."
Current position: State Supreme Court justice (Texas)
Why Trump picked him: Willett, 49, is a veteran Texas political aide, having worked for George W. Bush's gubernatorial administration, his campaign, and then his White House, serving as director of law and policy at the Office of Faith-Based and Community Initiatives and then as deputy assistant attorney general for the Office of Legal Policy. In 2003 he moved back to Texas to work for then-attorney general, now-Gov. Greg Abbott, before then-Gov. Rick Perry appointed him to Texas's highest court in 2005.
On the bench, Willett has won a number of influential fans, notably columnist George Will, for his defense of the Supreme Court's Lochner era, a period in which the 14th Amendment was used to strike down economic regulations like minimum wages and child labor laws on the grounds that such measures violated "freedom of contract." In a 2015 case on regulation of needle-threading businesses, he wrote, "A wealth of contemporary legal scholarship is reexamining Lochner, its history and correctness as a matter of constitutional law, and its place within broader originalist thought, specifically judicial protection of unenumerated rights such as economic liberty."
In other words, you can expect Willett to be even more aggressive in trying to strike down progressive economic legislation than conservatives on the Court already are.
Willett has also stood out as a prolific and unrestrained tweeter, and, inconveniently for Trump, the judge has not been shy about tweeting his disapproval for the presumptive Republican nominee:
Trump, however, was the bigger man and put Willett on his shortlist anyway.