Even before Anthony Kennedy announced his retirement Wednesday, conservatives had been lobbying President Donald Trump to nominate a Supreme Court justice who would avoid what they call judicial activism.
On Wednesday, Trump signaled to conservatives that they would get what they wanted.
“The most important characteristic that the president is likely to be considering is their judicial philosophy,” said Jamil Jaffer, who helped push through the confirmation of Trump’s first Supreme Court pick, Neil Gorsuch, and founded the National Security Institute at Antonin Scalia Law School at George Mason University. “While other factors may play a role, he is looking for someone that will interpret the law and not make the law.”
Trump said the replacement process will “begin immediately” before quickly saying he would choose from his earlier list of 25 contenders that two conservative groups, the Federalist Society and Heritage Foundation, helped develop. “It will be somebody from that list,” he said. “They will come from that list of 25 people.”
Brett Kavanaugh, a former law clerk for Kennedy who serves on the U.S. Court of Appeals for the D.C. Circuit and was added to Trump’s list in November, had been mentioned as a frontrunner for a potential vacancy in recent weeks, according to one person familiar with the situation. Kavanaugh worked for President George W. Bush and is considered a strong contender that appeals to both Bush and Trump Republicans though it took three years to confirm him to the appellate court. He also worked for Kenneth Starr, the special counsel who investigated President Bill Clinton’s financial dealings and later his affair with White House intern Monica Lewinsky.
Of the remaining 24 names, several others are been pushed by conservatives including Amy Coney Barrett of Indiana, U.S. Court of Appeals for the Seventh Circuit; Thomas Hardiman of Pennsylvania, U.S. Court of Appeals for the Third Circuit; Raymond Kethledge of Michigan, U.S. Court of Appeals for the Sixth Circuit; and William Pryor of Alabama, U.S. Court of Appeals for the Eleventh Circuit.
Conservative organizations had pushed the White House to consider other judges who were not on Trump’s original list of possible Supreme Court nominees, leading the White House to add five new names.
The White House has been searching for a possible Supreme Court nominee since Trump came into office, knowing there could eventually be another vacancy, according to two people familiar with the situation but not authorized to speak publicly. Conservatives are pushing the White House to act quickly so a new justice could be seated when the Supreme Court term begins in October.
“A new day is dawning in America,” said Mat Staver, founder and chairman of Liberty Counsel. “I look forward to having a justice who will respect and apply the original text and meaning of the Constitution.”
Both Pryor and Hardiman were interviewed last year when Trump nominated Gorsuch.
“Pryor and Harriman and Kavanaugh, all three have similar buzz,” said a senior conservative operative who spoke in a personal capacity but whose organization will be heavily involved in the confirmation fight, and didn’t want to be named. “Judge Pryor’s record as a prosecutor, Attorney General of Alabama, judge, and the head of the U.S. Sentencing Commission uniquely qualifies him to serve on” the Supreme Court.”
Carrie Severino, Judicial Crisis Network’s chief counsel and policy director, said one attribute that Trump is looking for that other presidents have not focused on is the willingness to stand up to principles when under fire. “He wants someone willing to step up and answer the hard questions,” she said. “He wants them to have the principles to make decisions but to stand up for them too.”
Tim Chapman, executive director of Heritage Action, the political arm of the Heritage Foundation, which will be intimately involved, said the organization has a strong interest in someone “that’s long been known to have constitutional conservative views when it comes to legal rulings.”
“We’ll make sure all the best legal analysts at Heritage are heard loud and clear in Senate offices, we’ll work closely with the White House to advise them,” he said. “It’s an inside-outside game: work with the White House, work with the Senate, make sure the inside game is being very clear, that people clearly understand what type of jurists we’re looking for, and that the outside game is amplified so that people understand there’s political goodwill behind this.”
Trump has nominated dozens of judges across the nation that conservatives have cheered, even if they lament that Senate Democrats have held up several confirmations.
“We think President Trump has a great record on judges across the federal bench. We’re excited by the list,” said Sarah Field, vice president of judicial strategy at Americans for Prosperity. “At this point, anyone who says they’re certain probably doesn’t have the best information, but from the list we’ve seen, we would be comfortable with those folks.”
The organization, which has a grassroots presence in 36 states, has been mobilizing for a potential vacancy for months and is prepared to spend “at least seven figures” to “support someone in the mold of Justice Gorsuch, someone who respects the Constitution, interprets the law as written,” Field said.