Picking RBG’s Successor: The Who & The When

The political battles over who will succeed Ruth Bader Ginsburg as Supreme Court Justice have already begun with some demanding delays, some pushing urgency, others urging more radicalism, and all of this being super-amplified by every mainstream and social media feed, happy to use any old piece of fake news to make their point ever louder, and fearmonger the consequences of “the other side” getting to make their choice.

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First things first is the timing.

Former president Obama has called for a delay in the decision until after the election (which presumably he believes Harris – and Biden – will win).

This is fascinating as it flies in the face of what his former vice president Joe Biden demanded in an NYTimes op-ed in 2016:

In my 36-year tenure in the United States Senate — nearly half of it as chairman or ranking Democrat on the Judiciary Committee — I presided or helped preside over nine nominees to the Supreme Court, from both Republican and Democratic presidents. That’s more than anyone else alive today.

In every instance we adhered to the process explicitly laid out in the Constitution: The president has the constitutional duty to nominate; the Senate has the constitutional obligation to provide advice and consent. It is written plainly in the Constitution that both presidents and senators swear an oath to uphold and defend.

That’s why I was so surprised and saddened to see Republican leaders tell President Obama and me that they would not even consider a Supreme Court nominee this year. No meetings. No hearings. No votes. Nothing. It is an unprecedented act of obstruction. And it risks a stain on the legacy of all those complicit in carrying out this plan. I would ask my friends and colleagues — and all those who love the Senate — to think long and hard before going down this road.

And here is Biden going into more detail on why the nomination should proceed immediately…

.@JoeBiden in 2016:

“I would go forward with a confirmation process as chairman, even a few months before a presidential election, if the nominee were chosen with the advice, and not merely the consent, of the Senate, just as the Constitution requires.” pic.twitter.com/4tiPjZZTHw

— Washington Examiner (@dcexaminer) September 19, 2020

So, Obama calls for a delay; Biden says that would be unconstitutional! And President Trump agrees with Biden:

.@GOP We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!

— Donald J. Trump (@realDonaldTrump) September 19, 2020

In another tweet, Trump thanked former Sen. Harry Reid (D-Nev.) for in 2013 abolishing the requirement for presidential appointees receive 60 votes for confirmation. Senate Majority Leader Mitch McConnell (R-Ky.) extended the policy to Supreme Court nominees in 2017.

A rush Job… or normal?

The mainstream media is already claiming that any nomination process would be a rush now…

The Senate would need to move faster than usual to confirm a nominee before the election 45 days from now. The average time from nomination to Senate vote – after vetting and hearings – is 69.6 days, or about 2.3 months, according to a 2018 report from the Congressional Research Service.

However, there appears to be something wrong with their math as Undercover Huber (@JohnWHuber) detailed in a tweet-thread:

A total of 61 SCOTUS justices have been nominated and confirmed to the Supreme Court since the turn of the last century (1900)

70% of these (43 Justices) were confirmed in *under 46 days* (the amount of time remaining until the Nov 3 Presidential election)

Nominee & days to confirm from nomination:

• Lewis Powell —45
• Ruth Bader Ginsburg —42
• Sandra Day O’Connor —33 (*the vacancy)
• Harlan Stone —31
• Wiley Rutledge —28
• Harry Blackmun —27 (*wrote Roe v Wade)
• Arthur Goldberg —25
• Robert Jackson —25
• John Roberts —23 (*became Chief Justice)
• Mahlon Pitney —23
• John Paul Stevens —19
• Sherman Minton —19
• Warren Burger —17 (*became Chief Justice)
• Charles Whittaker —17
• Tom Clark —16
• Pierce Butler —16
• Harlan Stone —15 (*became Chief Justice)
• William Douglas —15
• Abe Fortas —14
• Fred Vinson —14 (*became Chief Justice)
• Frank Murphy —12
• Felix Frankfurter —12
• Owen Roberts —11
• Charles Hughes —10
• Stanley Reed —10
• John Clarke —10
• James McReynolds —10
• Benjamin Cardozo —9
• William Moody —9
• Byron White —8
• Charles Hughes —7 (*became Chief Justice)
• Horace Lurton —7
• Hugo Black —5
• Edward Sanford —5
• William Day —4
• Joseph Lamar —3
• Willis Devanter —3
• Oliver Holmes —2
• Harold Burton —1
• James Byrnes —0
• George Sutherland —0
• William Taft —0 (*became Chief Justice)
• Edward White —0

(Yes, four SCOTUS Justices had SAME DAY nominations and confirmations by the Senate. And Byrnes never even attended law school before FDR put him on the court)

For full context, the 18 Justices that took longer than 46 days from nomination to confirmation by the Senate, since 1900:

• Loius Brandeis —125
• Potter Stewart —108
• Clarence Thomas —99
• William Rehnquist —89 (*became Chief Justice)
• Brett Kavanaugh —88
• Elena Kagan —87
• Antonin Scalia —85
• Samuel Alito —82
• Thurgood Marshall —78
• Stephen Breyer —73
• David Souter —69
• Sonia Sotomayor —66
• Neil Gorsuch —65
• Anthony Kennedy —65
• John Harlan —65
• William Brennan —64
• William Rehnquist —49
• Earl Warren —49 (*became Chief Justice)

While the nomination time between now & the Nov 3 election is admittedly short given modern Senate gridlock, from a constitutional and historical perspective, 46 days is plenty.

Both Ginsburg and the Justice Ginsburg replaced were nominated and confirmed in less than that.

And Mitch McConnell in his letter said there was plenty of time. He cited Ginsburg’s nomination in 1993 which took only 50 days from the the time it was announced until she was confirmed.

“President Trump’s nominee will receive a vote on the floor of the United States Senate,” McConnell said.

And then there is the Who?

Trump’s recently released a list of additional potential Supreme Court Justice nominees included Sens. Tom Cotton of Arkansas, Ted Cruz of Texas and Josh Hawley of Missouri – who has already turned down the potential nomination.

“Every one of these individuals will ensure equal justice, equal treatment, and equal rights for citizens of every race, color, religion, and creed,” Trump promised.

“Together we will defend our righteous heritage and preserve our magnificent American way of life.”

Here is the latest full list of potential SCOTUS candidates (Trump has released names on three occasions – Sept 2016, Nov 2017, and most recently Sept 9th 2020)…

1. Bridget Bade, a judge on the United States Court of Appeals for the Ninth Circuit.
2. Amy Coney Barrett of Indiana, U.S. Court of Appeals for the Seventh Circuit. Barrett was a finalist for Trump’s second high court nomination, which ultimately went to Brett Kavanaugh.
3. Keith Blackwell of Georgia, Supreme Court of Georgia
4. Charles Canady of Florida, chief justice of the Supreme Court of Florida
5. Daniel Cameron, the 51st attorney general of the Commonwealth of Kentucky.
6. Paul Clement, a partner with Kirkland & Ellis, LLP, who previously served as solicitor general
7. Steven Colloton of Iowa, U.S. Court of Appeals for the Eighth Circuit
8. Tom Cotton, U.S. senator for Arkansas
9. Ted Cruz, U.S. senator for Texas
10. Stuart Kyle Duncan, judge on the United States Court of Appeals for the Fifth Circuit.
11. Allison Eid of Colorado, U.S. Court of Appeals for the Tenth Circuit
12. Steven Engel, assistant attorney general for the Office of Legal Counsel of the United States Department of Justice
13. Noel Francisco, former solicitor general
14. Britt Grant of Georgia, U.S. Court of Appeals for the Eleventh Circuit
15. Raymond Gruender of Missouri, U.S. Court of Appeals for the Eighth Circuit
16. Thomas Hardiman of Pennsylvania, U.S. Court of Appeals for the Third Circuit. Hardiman was also a finalist for the nomination that went to Kavanaugh.
17. Josh Hawley, U.S. senator for Missouri. Hawley has already said he would decline the president’s endorsement to the court.
18. James Ho, a judge on the U.S. Court of Appeals for the Fifth Circuit
19. Gregory Katsas, judge on the U.S. Court of Appeals for the District of Columbia Circuit.
20. Raymond Kethledge of Michigan, U.S. Court of Appeals for the Sixth Circuit
21. Barbara Lagoa, a judge on the U.S. Court of Appeals for the Eleventh Circuit
22. Christopher Landau, U.S. ambassador to Mexico
23. Joan Larsen of Michigan, U.S. Court of Appeals for the Sixth Circuit
24. Mike Lee of Utah, United States Senator
25. Thomas Lee of Utah, Supreme Court of Utah
26. Edward Mansfield of Iowa, Supreme Court of Iowa
27. Federico Moreno of Florida, U.S. District Court for the Southern District of Florida
28. Carlos Muñiz, a justice on the Supreme Court of Florida.
29. Kevin Newsom of Alabama, U.S. Court of Appeals for the Eleventh Circuit
30. Martha Pacold, judge on the U.S. District Court for the Northern District of Illinois
31. Peter Phipps, judge on the U.S. Court of Appeals for the Third Circuit
32. Sarah Pitlyk, a judge on the U.S. District Court for the Eastern District of Missouri
33. William Pryor of Alabama, U.S. Court of Appeals for the Eleventh Circuit
34. Allison Jones Rushing, a judge on the U.S. Court of Appeals for the Fourth Circuit
35. Margaret Ryan of Virginia, U.S. Court of Appeals for the Armed Forces
36. David Stras of Minnesota, U.S. Court of Appeals for the Eighth Circuit
37. Diane Sykes of Wisconsin, U.S. Court of Appeals for the Seventh Circuit
38. Amul Thapar of Kentucky, U.S. Court of Appeals for the Sixth Circuit
39. Kate Todd, deputy assistant to the president and deputy counsel to the president
40. Timothy Tymkovich of Colorado, U.S. Court of Appeals for the Tenth Circuit
41. Lawrence VanDyke, a judge on the U.S. Court of Appeals for the Ninth Circuit
42. Robert Young of Michigan, Supreme Court of Michigan (Ret.)
43. Don Willett, U.S. Court of Appeals for the Fifth Circuit
44. Patrick Wyrick, District Court for the Western District of Oklahoma

“Apart from matters of war and peace, the nomination of a Supreme Court justice is the most important decision an American president can make,” Trump said.

Trump repeatedly attacked Democratic presidential nominee Joe Biden, who has not released a similar list.

“Joe Biden has refused to release his list perhaps because he knows the names are so extremely far left that they could never withstand public scrutiny or receive acceptance,” Trump said.

“Our cherished rights are at risk including the right to life and our great second amendment,” Trump added.

However, <a href=”

NEW: Trump’s list of contenders to replace Ginsburg include appeals court judges Amy Coney Barrett and Barbara Lagoa — REUTERS

— Lawrence Hurley (@lawrencehurley) September 19, 2020

“>Reuters  is reporting that a source said this morning that of the list, two female U.S. Appeals Court judges are on President Donald Trump’s short list of candidates to fill the Supreme Court vacancy.

The source told <a href=”

NEW: Trump’s list of contenders to replace Ginsburg include appeals court judges Amy Coney Barrett and Barbara Lagoa — REUTERS

— Lawrence Hurley (@lawrencehurley) September 19, 2020

“>Reuters that Barbara Lagoa, a Cuban American, and Amy Coney Barrett were among the top contenders, adding that Trump was expected to announce a nominee in a matter of days.

Judge Barbara Lagoa was appointed by Trump to the 11th Circuit Court of Appeals in 2019.

Prior to that, Lagoa served as the first Hispanic woman and the first Cuban American woman on the Supreme Court of Florida.

Some have also suggested Judge Joan Larsen:

A former law clerk for Justice Antonin Scalia, Larsen spent many years of her career as a professor University of Michigan School of Law.

She served in the George W. Bush administration in the US Department of Justice Office of Legal Counsel.

Larsen, 51, was appointed to the Michigan Supreme Court in 2015 before put up by Trump for the US Court of Appeals for the 6th Circuit in 2017.

She graduated first in her class from Northwestern University School of Law.

The most serious nominee, however, is believed to be Judge Amy Coney Barrett – who Trump nominated to the US Court of Appeals for the 7th Circuit.

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A judge on the US Court of Appeals for the 7th Circuit, Barrett was on Trump’s shortlist for his second Supreme Court nomination, which ultimately went to Justice Brett Kavanaugh in 2018.

A graduate of Notre Dame University Law School, she clerked for the late conservative Justice Antonin Scalia and then spent two decades as a law professor at Notre Dame.

Barrett, 48, is a favorite of the religious right, and her deep ties to her Catholic faith earned her a grilling from Democrats during her confirmation hearings to the federal bench. California Sen. Dianne Feinstein memorably told her: “The dogma lives loudly within you, and that’s a concern.”

Barrett responded: “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they arise from faith or anywhere else, on the law.”

Having previously written that Supreme Court precedents are not set in stone, the question of whether Barrett would vote to overturn Roe v. Wade would loom large over her nomination.

She and her husband, Assistant US Attorney Jesse Barrett, live in Indiana and have seven children.

We give the last words to Jonathan Turley, a law professor at George Washington University, noted that, “There is no replacing Ruth Bader Ginsburg and we all know it.

“She is the type of personality that comes few times in history,” he said.

“She was one of the most consistent and clear and courageous voices in the history of the Court.

“Her replacement by President Donald Trump could prove the most consequential and transformative nomination in the history of the modern Court. An array of legal doctrine currently dangle by 5-4 majorities.”

We are sure this will be all be handled very logically and unemotionally…

The most stress-inducing video edit ever https://t.co/6gqQuhrs3T

— Arthur Bloom 🇺🇸 (@j_arthur_bloom) September 19, 2020

Rest in peace, Ruth Bader Ginsburg.