One of the conservative establishment’s greatest fears about a Donald Trump presidency has been that he wouldn’t pick movement ideologues to sit on the Supreme Court. Trump attempted to put that concern to rest last week when he announced that he was working with the conservative behemoth the Heritage Foundation to shape a list of 10 possible Supreme Court picks from whom he would choose nominees if he were to become president. (Whether he would actually keep that promise, however, is an open question.)
Meanwhile, Trump’s main GOP presidential rival, Sen. Ted Cruz of Texas, has promised to make nominating ultra-conservative justices a “priority” of his presidency. He has even made a point of criticizing past Republican presidents for appointing insufficiently conservative jurists.
Trump hasn’t released his list of candidates, but today the Heritage Foundation published a “non-exclusive” list of eight people that it said “illustrates the kind of highly qualified, principled individuals the new president should consider” for the high court — and who, it’s safe to assume, represent the kind of judges the conservative movement would pressure Trump and Cruz to pick for the federal courts.
Two of Heritage’s picks, federal appeals court judges William Pryor and Diane Sykes, have been mentioned repeatedly by Trump on the campaign trail. The name of another, Sen. Mike Lee of Utah, has been brought up by Cruz, who even picked up the Utah senator’s endorsement.
In a profile of Sykes last month, ThinkProgress’ Ian Millhiser wrote:
… Sykes, who currently sits on the Seventh Circuit, backed a voter ID law . She also wrote a decision expanding religious objectors’ ability to limit their employees’ access to birth control coverage that SCOTUSBlog’s Lyle Denniston described as “ the broadest ruling so far by a federal appeals court barring enforcement of the birth-control mandate in the new federal health care law.”
Millhiser noted that Sykes also ruled “that anti-gay groups have a constitutional right to continue receiving government subsidies even if they engage in discrimination,” another troubling indication that she could support conservative groups’ attempts to justify discrimination.
Pryor, a former Alabama attorney general, also has a history of right-wing activism. Pryor has called Roe v. Wade the “ worst abomination in the history of constitutional law” and said that it created “ a constitutional right to murder an unborn child.” He has claimed that with “the New Deal” and other measures, the U.S. has “strayed too far in the expansion of the federal government,” and asserted that the federal government “should not be in the business of public education nor the control of street crime .” Like Sykes, Pryor has upheld a voter ID law.
Lee, a Tea Party favorite who has been Cruz’s strongest ally in the Senate, has a legal philosophy that might be even more troubling, dismissing large swaths of the federal government’s work as unconstitutional. As Peter summarized recently:
Here are a few things that Sen. Mike Lee believes are unconstitutional for the federal government to be engaged in:
Peter noted that Lee “dismisses Supreme Court rulings upholding a woman’s right to abortion” and has “called the court’s marriage equality ruling a ‘breathtaking presumption of power.’”
Also on Heritage’s list is Brett Kavanaugh, a George W. Bush appointee to the Court of Appeals for the D.C. Circuit, where he is a colleague of President Obama’s Supreme Court nominee, Merrick Garland. Kavanaugh, who before his career as a judge worked on the notorious “Starr Report” about President Clinton, is just one example of Bush’s effort to put ideologically motivated conservatives on the federal bench.
Kavanaugh’s rulings on the D.C. Circuit include striking down important EPA air pollution rules in an opinion that one columnist called “60 pages of legal sophistry, procedural hair-splitting and scientific conjecture.” PFAW summarized the issue at hand:
Last summer, two Bush-nominated judges on the D.C. Circuit issued a much-criticized ruling in EME Homer City Generation, striking down important new EPA rules on air pollution that crosses state lines. In 2011, the EPA issued new regulations to limit the levels of sulfur dioxide and nitrous oxide emitted by coal-fired power plants and crossing state lines. Based on the administrative record and its expertise on environmental health, the agency concluded that the new rules would prevent 34,000 premature deaths, 15,000 heart attacks, and 400,000 cases of asthma. As if that weren’t important enough, the rules would also save $280 billion a year in healthcare costs.
In 2011, Kavanaugh dissented from a ruling that found ExxonMobil was not immune from being sued by Indonesians who said they had been “beaten, burned, shocked with cattle prods, kicked, and subjected to other forms of brutality and cruelty" by the company’s security forces. Dissenting from a ruling upholding the Affordable Care Act the same year, Kavanaugh suggested that a president who thinks the ACA is unconstitutional could simply decline to enforce it.
Also on Heritage’s list are Paul Clement, who served as solicitor general in the Bush administration and is just 49 years old, and federal appeals court judges Steven Colloton and Raymond Gruender. Another Heritage suggestion is Texas Supreme Court Justice Don Willett, who was nominated by then-Gov. Rick Perry after helping Bush run his faith-based initiatives in Texas and in the White House.