- The Washington Times - Thursday, January 26, 2017

If President Trump and conservative activists want to make good on their goal of replacing the late Justice Antonin Scalia with a jurist of the same bent and caliber, a group of lawyers and academics have crunched the numbers and have come up with the answer: Judge William Pryor.

Of the three names reported to be at the top of Mr. Trump’s list, Judge Pryor scored the highest on a test of likely “Scalia-ness,” followed closely by Judge Neil Gorsuch, with Judge Thomas Hardiman trailing behind.

Jeremy Kidd, a law professor at Mercer University who led the study, said they looked at the judges’ fealty to the Constitution’s original meaning, their devotion to Justice Scalia’s writings and their willingness to strike out in writing their own opinions rather than sign on to colleagues’ rulings — a hallmark of Scalia’s tenure on the high court.

Mr. Trump said he’ll name his pick for Justice Scalia’s replacement next Thursday, working off a list of nearly two dozen names he compiled during the presidential campaign.

Of those, he’s reportedly looking intently at just three names, sparking a feverish battle among conservatives to try to shape his final pick.

Mr. Kidd’s analysis found that Judge Pryor was the most devoted to Justice Scalia’s writings, while Judge Gorsuch scored higher on fealty to originalism and on willingness to break from colleagues in cases and write his own opinion.

“We hope that the study helps people realize that there actually are ways to measure the qualities they say they want in a jurist,” Mr. Kidd said.

Conservative activist Eugene Delgaudio, who’s fighting to derail Judge Pryor, said in his view, Judge Gorsuch is the most Scalia-like.

“Not only does Gorsuch embrace wholeheartedly Scalia’s ‘originalist’ jurisprudence, but he has the intellectual power and will to persuade others to agree with him — as did Justice Scalia — and therefore, has the potential of sharing with Justice Thomas the role of being the dominant conservative voices on the Court,” Mr. Delgaudio said.

Andrew Schlafly, a lawyer for the Legal Center for Defense of Life and son of the late conservative activist Phyllis Schlafly, said his pick for the closest to Justice Scalia is Judge Hardiman. But he said he hopes Mr. Trump ditches the reported list of finalists and gets someone else altogether.

“There are better candidates beyond the three, such as Charles Canady and Jennifer Elrod,” he said. Judge Canady was on Mr. Trump’s original list of 21 possible picks during the campaign, while Judge Elrod was not.

Justice Scalia was approved for the Supreme Court on a unanimous vote in 1986. His successor is unlikely to see the same treatment.

Senate Minority Leader Charles E. Schumer has already threatened a filibuster, saying Democrats won’t accept a candidate they feel is out of the mainstream.

Mr. Schumer voted to confirm Judge Hardiman and did not oppose Judge Gorsuch for their appeals court seats, though he opposed — and joined a filibuster against — Judge Pryor.

Democrats are also still seething over Republicans’ success in denying President Obama the chance to fill Justice Scalia’s seat.

Dan Goldberg, legal director at the Alliance for Justice, said all of the judges apparently on Mr. Trump’s short list “are even more extreme than Justice Scalia and more dangerous to our nation and the American people.”

“It is clear that all the individuals being considered by the president would fail to properly protect critical constitutional values and would undermine essential laws critical to the American people,” he said.

A number of conservative groups begged out of the Justice Scalia game altogether, saying they didn’t want to publicly pick among the names.

Carrie Severino, chief counsel at the Judicial Crisis Network, a conservative legal advocacy group, said trying to judge Scalia-ness based on a formula was “not very helpful.”

She said counting how many times a judge uses the word originalism in his writings does not mean he actually practices originalism, and citing nonjudicial writings also does not matter. In order to find out who is most Scalia-like, Ms. Severino said it’s important to look at a judge’s full record and reasoning, which would take thousands of hours.

Ed Whelan, who clerked for Justice Scalia and is president of the Ethics and Public Policy Center, said trying to evaluate judges for Scalia-ness leaves “so much room for error and arbitrariness.”

He said it’s more important to look at what the judges say in their rulings, and he said each of the three final names have the makings of someone who would preserve Justice Scalia’s legacy.

“The most basic thing is a commitment to the judicial philosophy of originalism. They all have that,” Mr. Whelan added.

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