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Round two

A look at the short list of who might be Trump’s second Supreme Court nominee

Round two

The Supreme Court building (Jon Elswick/AP)

Rumors continue to ebb and flow about President Donald Trump’s pick to replace retiring U.S. Supreme Court Justice Anthony Kennedy. Lists change by the minute, and so far the White House says the president has interviewed seven potential nominees. Here we’ve gathered the consensus short list—a few names from Trump’s first short list of nominees, and a few new names.

“The names we’re hearing are all excellent judges,” said Kelly Shackelford, president of First Liberty Institute, who is close to the process. “It’s not that shocking ... not just because of the Gorsuch appointment, but all of the federal court and appeals court nominations; they’ve been excellent.”

Trump will announce the nominee on July 9. Kennedy plans to retire July 31, which means theoretically he could rescind his retirement if Trump’s nominee is not to his liking. The nominee will face a fierce confirmation battle, especially with regard to social issues where Kennedy sided with liberals.  

Amy Coney Barrett, 46, of the 7th U.S. Circuit Court of Appeals (since late 2017)

University of Notre Dame Law School/AP

Judge Amy Coney Barrett (University of Notre Dame Law School/AP)

For political reasons alone, a woman makes sense as Trump’s pick—especially if he is trying to woo the votes of Sens. Lisa Murkowski, R-Alaska, and Susan Collins, R-Maine. Both voted to confirm Barrett to the 7th Circuit only nine months ago.

For Trump, the left’s anger toward Barrett that emerged during her circuit court confirmation hearing last year is likely a point in her favor. During that hearing Sen. Dianne Feinstein, D-Calif., threw suspicion onto Barrett’s Catholicism.

“When you read your speeches, the conclusion one draws is that the dogma lives loudly within you,” Feinstein said to Barrett. “And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”

The speech Feinstein was referring to was a 2006 graduation speech for Notre Dame Law School, where Barrett was a longtime professor. Barrett had made this comment that startled Feinstein: “No matter how exciting any career is, what is it really worth if you don’t make it part of a bigger life project to know, love, and serve the God who made you?”

Liberal opponents have used another feature of Barrett’s faith as a weapon: her association with the People of Praise, an independent ecumenical community. The New York Times first reported on her ties to the group, and has characterized it as cultish. The group appears to be more of a traditional Christian community group. Barrett did not list any affiliation with a church on her questionnaire for her confirmation to be a circuit court judge.

Rob Driscoll, a student of Barrett’s at Notre Dame more than a decade ago, recalled a charitable auction the school held every year. Barrett donated a dinner at her home, and Driscoll and a group of other students decided to pool their money to bid on it. They won, and Barrett cooked them dinner themed on her New Orleans roots, including a mock turtle soup. Driscoll said the time was “immensely enjoyable”—the students enjoying their host’s soup and her “brilliant mind.” Driscoll was one of hundreds of former students of Barrett’s who signed a letter supporting her during her circuit court confirmation.

Barrett has only a brief judicial record because she has only been a federal judge since late last year. She has not taken a definitive position about overturning Roe v. Wade.

In one academic article, Barrett wrote with now-president of Catholic University of America John Garvey about Catholic judges handling death penalty cases. The Catholic Church opposes the death penalty and she and Garvey concluded that in some specific instances, Catholic judges should recuse themselves from those cases for moral reasons. However, at her confirmation hearing, Barrett said her faith would not force her to recuse herself from any cases.

She clerked for Supreme Court Justice Antonin Scalia, as well as D.C. Circuit Judge Laurence Silberman, before working at elite law firms in Washington. She was part of the University of Notre Dame Law School faculty from 2002 until her appointment to the 7th Circuit last year. She and her husband Jesse have seven children. They adopted two of their children from Haiti and another has special needs.

Brett Kavanaugh, 53, of the D.C. Circuit (since 2006)

CQ Roll Call/AP

Judge Brett Kavanaugh (CQ Roll Call/AP)

Kavanaugh is the oldest and most experienced jurist on Trump’s short list. Though Barrett is the conservative favorite, Supreme Court insiders see Kavanaugh as the leading candidate to replace Kennedy—for whom he clerked in the 1990s.

Kavanaugh, another Catholic, grew up in Washington, D.C. He attended Georgetown Preparatory School before earning undergraduate and law degrees at Yale. He was the lead author of the Starr Report, detailing the offenses of then-President Bill Clinton, and later worked in the George W. Bush White House.

As a member of the D.C. Court of Appeals—the prime stepping stone to the Supreme Court—Kavanaugh has handled numerous hot-button issues. Twice the Supreme Court used his dissenting opinions to overturn rulings involving the Environmental Protection Agency.

Like Barrett, Kavanaugh is one of five candidates the White House added to its Supreme Court list last November. So while experienced, outside groups hadn’t vetted him to the extent they vetted others before the Gorsuch nomination last year.

Some conservative and pro-life groups are campaigning against Kavanaugh because of his ties to the Republican establishment and rulings involving Obamacare and abortion.

One example: This year Kavanaugh ruled, on appeal, that the federal government did not have to facilitate an abortion for a minor illegal immigrant who wanted one. Kavanaugh adopted the administration’s argument, but some social conservatives have criticized him for not questioning the teen’s right to an abortion at all—essentially going after Roe v. Wade.

Conservative Sens. Rand Paul, R-Ky., and Tom Cotton, R-Ark., have both expressed to the White House their concerns about Kavanaugh.

Meanwhile, former Scalia clerks like Ed Whelan are defending his record.

Kavanaugh wrote a strong dissent when the D.C. Circuit declined to hear an en banc appeal of Priests for Life’s case against the Health and Human Services (HHS) contraceptive mandate. He wrote that the HHS regulations “substantially burden the religious organizations’ exercise of religion.” But even that case has drawn conservative criticism, since Kavanaugh conceded the government’s “compelling interest” in providing access to contraceptives.

Raymond Kethledge, 51, of the 6th Circuit (since 2008)

Abdul El-Tayef/WPPI

Judge Raymond Kethledge (Abdul El-Tayef/WPPI)

Kethledge is a New Jersey native who earned undergraduate and law degrees at the University of Michigan. His pedigree would add diversity to the 100 percent Ivy League Supreme Court, but President Trump reportedly wants “name-brand” credentials.

Like Kavanaugh, Kethledge is a former Kennedy clerk—a fact that has made both men popular guesses to replace the retiring justice.

Among rulings on several notable cases, Kethledge wrote the unanimous 2016 opinion in favor of conservative groups who sued the Internal Revenue Service for illegal targeting. Kethledge chastised the government for not complying with a lower court order and called the allegations of political targeting “among the most serious a federal court can address.”

Kethledge met with Trump as a finalist for the Scalia seat and reportedly impressed the president during a White House meeting this week. Conservative commentator Hugh Hewitt dubbed Kethledge “Gorsuch 2.0,” but some legal observers believe the National Rifle Association is quietly opposed to Kethledge because he did not side with conservatives in a key Second Amendment case. He has a minimal track record on abortion issues.

Kethledge lives near Ann Arbor, Mich., and last year co-authored a leadership book on solitude.

Thomas Hardiman, 52, of the 3rd Circuit (since 2007)

Matt Slocum/AP

Judge Thomas Hardiman (Matt Slocum/AP)

Born in Massachusetts, Hardiman drove a cab to pay for law school at Georgetown University, and served alongside Trump’s sister, Maryanne Trump Barry, on the 3rd Circuit. Having studied in Mexico, he speaks fluent Spanish and volunteered at a Spanish legal aid organization, Ayuda, representing immigrants on asylum and domestic violence cases. Hardiman has little record on abortion, but he has ruled on numerous religious freedom cases.

He dissented from a 3rd Circuit ruling against an evangelical mom who tried to read a Bible verse during her kindergartner’s “All About Me” presentation. Her son said the Bible was his favorite book, so the mom decided to read a few verses from Psalms. The school forbade it. Hardiman called the school’s action “viewpoint discrimination.”

On the other hand, in a recent complex case about religious exemptions to the Employment Retirement Income Security Act (ERISA), Hardiman ruled against the wishes of groups like Alliance Defending Freedom (ADF). The Supreme Court has agreed to take up that case. Jordan Lorence, the ADF attorney who worked on a brief in that case, didn’t think Hardiman’s ruling was overly concerning.

Amul Thapar, 49, of the 6th Circuit (since early 2017)

Ed Reinke/AP

Judge Amul Thapar (Ed Reinke/AP)

Thapar, the son of Indian immigrants, grew up in Ohio and became a federal prosecutor. He went on to become the first South-Asian-American on the federal courts when President George W. Bush named him to a federal district judgeship in Eastern Kentucky over a decade ago. He would be the first Asian-American on the Supreme Court.

In 2016, Thapar was one of the few (and the only non-white candidate) to interview with Trump to be his first Supreme Court nominee. Trump didn’t pick him then, but Thapar was the president’s first pick for federal circuit courts. A graduate of UC-Berkeley School of Law, Thapar doesn’t have the typical Ivy League credentials that mark all the current sitting justices.

A trial judge most of his judicial career dealing with issues from the coal industry to opioid trafficking, he hasn’t ruled on many social or First Amendment issues. But he has described his judicial philosophy as textualist and originalist—in the mold of Scalia.

He converted to Catholicism when he married his wife Kim, and served for several years as a board member for Catholic Charities in Kentucky. On his Senate questionnaire from his confirmation hearing to be a circuit court judge, he also listed that he was associated with the Becket Fund for Religious Liberty in 1998.

Joan Larsen, 49, of the 6th Circuit (since 2017)

Cliff Owen/AP

Judge Joan Larsen (Cliff Owen/AP)

Larsen remains a dark horse candidate but is still a serious contender. President Trump likes her Michigan Supreme Court experience, although she only served there for two years before he nominated her to the 6th Circuit last year.

Larsen was born in Iowa and graduated from Northwestern University School of Law. She clerked for Justice Antonin Scalia, taught at the University of Michigan School of Law, and served in the George W. Bush administration.

Larsen’s judicial record is thin, but in 2004 she authored a paper criticizing the Supreme Court’s use of international law. She called the use of international law to support the court’s Lawrence v. Texas decision striking down state sodomy laws “revolutionary.”

Larsen lives outside Ann Arbor, Mich., with her husband and their two children. Like Kethledge, Larsen would be Michigan’s first Supreme Court justice since Frank Murphy, who was appointed by Franklin Roosevelt in 1940. Michigan played a key electoral role in Trump’s 2016 presidential victory.

Emily Belz

Emily Belz

Emily reports for WORLD Magazine from New York City. Follow Emily on Twitter @emlybelz.

Emily Belz

J.C. Derrick

J.C. is WORLD Radio’s managing editor. He spent 10 years covering sports, higher education, and politics for the Longview News-Journal and other newspapers in Texas before joining WORLD in 2012 and eventually becoming WORLD’s Washington Bureau chief. Follow J.C. on Twitter @jcderrick1.