Donald Trump’s new contenders for the Supreme Court

By S.M. | NEW YORK

LAST year, while running for president, Donald Trump took the unprecedented step of naming 21 people he said he would consider for the late Antonin Scalia’s chair on the Supreme Court. Less than two weeks after taking office, Mr Trump followed through on that pledge, tapping Neil Gorsuch to fill the vacancy. Nine months later, the remaining 20 names are still would-be justices, but on November 17th, Don McGahn, the White House counsel, said a “refresh” was in order. Mr McGahn told conservative lawyers at the Federalist Society convention in Washington, DC that five more judges would be tacked on to the list—just in case another Supreme seat opens up.

Two of the new potential picks are 45-year-old, newly minted appeals-court judges Mr Trump recently appointed to the bench: Amy Coney Barrett of the Seventh Circuit Court of Appeals and Kevin C. Newsom of the Eleventh Circuit Court of Appeals. Judge Newsom won Senate confirmation by a vote of 66-31 on August 1st. Judge Barrett had a tougher road: after confronting concerns that her Catholicism may interfere with her ability to fairly adjudicate cases, she was confirmed by a vote of 55-43 on October 31st.

These jurists are joined by two even younger Supreme Court hopefuls, both of whom began stints on state supreme courts earlier this year. Britt Grant, 39, a woman, serves on the Supreme Court of Georgia and Patrick Wyrick, 36, sits on the Oklahoma Supreme Court. Judge Wyrick was born in 1981 during the first Reagan administration, when Ruth Bader Ginsburg, the oldest sitting justice, was already 48. Judge Wyrick also clerked for the fifth and by far most experienced judge on Mr Trump’s freshened roster: Brett Kavanaugh, 52, an 11-year veteran of the Circuit Court for the District of Columbia.

Many observers were surprised last year when Judge Kavanaugh’s name did not appear on the original list of 21 possible Supreme Court picks—an omission some chalk up to Mr Trump’s swamp-draining rhetoric. But Judge Kavanaugh stands head and shoulders above the other four new additions to the list. With more than a decade of solidly conservative service on America’s second-most-powerful court, he drew the most enthusiastic applause from the Federalist Society lawyers last week. One item on his resume is also telling: a clerkship during the 1993-94 term with Justice Anthony Kennedy.

Of the three justices aged 79 or older, Justice Kennedy, who is 81, has been the main subject of retirement rumours. Many thought that the swing justice—who usually votes with the court’s conservative bloc but has joined the liberals on landmark rulings concerning race, abortion and gay rights, including the same-sex marriage case of 2015—would hang up his robe last June. Instead, as the court’s previous term wound to a close, he made coy jokes about his future and opted to stick around, no doubt to play a role in deciding contentious cases involving gerrymandering, public-sector unions and LGBT discrimination.

Like Judge Kavanaugh, Justice Gorsuch is a former clerk to Justice Kennedy. (They clerked for him at the same time.) Mr Trump’s new short list of possible justices, with Judge Kavanaugh as the undeniable headliner, seems to be a pinky-promise golden parachute to Justice Kennedy. Go ahead and announce your retirement, the list hints, your legacy is safe. Two of the nine Supreme Court justices, both strapping young men in their early 50s, will keep your spirit alive on the bench for decades to come. And the timing of the release is notable: the administration is getting antsy, especially with an increasingly vulnerable 52-48 Republican edge in the Senate. If Jeff Sessions's Alabama seat in the Senate goes to the Democrat on December 12th that margin falls to 51-49, and a couple of key losses next autumn would spell the end of Mr Trump’s Republican majority so crucial to his judicial-nomination hopes. In a statement released on November 17th the White House said Mr Trump had been elected to "restore the rule of law and to Make the Judiciary Great Again". He "remains deeply committed to identifying and selecting outstanding jurists in the mould of Justice Gorsuch", it said. By releasing the refresh now, the White House is giving Justice Kennedy food for thought as he sits down to dinner with his family over the Thanksgiving weekend.

If dangling another former clerk before his eyes has its intended effect, Justice Kennedy might feel more comfortable announcing his retirement earlier rather than later, giving the Trump team time to vet and pick a new justice before summer hits. That may leave enough time for the Senate to consider and seat Justice Kennedy’s successor in time for the beginning of the next term, which begins October 1st, 2018. But if Justice Kennedy considers the fate of his judicial legacy on the Supreme Court, he may think twice. Like Justice Gorsuch, Judge Kavanaugh is more conservative than his old boss. His record and rhetoric suggest that Judge Kavanaugh is more likely to uphold restrictions on affirmative action and on abortion, for example. In a speech at Notre Dame Law School earlier this year, Judge Kavanaugh lauded Justice Scalia’s admonition not to “make up new constitutional rights that are not in the text of the constitution”. That is not reassuring talk for a justice who has laboured to dial back discrimination against gays and lesbians for decades while colleagues to his right accused him of fashioning rights out of thin air.