- The Washington Times - Thursday, June 28, 2018

Youth is a factor as President Trump searches for his pivotal nominee to replace Justice Anthony M. Kennedy on the Supreme Court, a task that the president said Thursday is already in high gear.

The president is looking for a nominee who can leave a conservative mark on the high court for most of the next half-century, extending Mr. Trump’s impact far beyond his presidency.

“We have to pick one that’s going to be there for 40 years, 45 years,” Mr. Trump said Wednesday night.

That would seem to favor a nominee younger than 50, of which there are nine on the president’s list of 25 potential candidates. The youngest is Oklahoma Supreme Court Justice Patrick Wyrick, who is 37.

The others in the below-50 age bracket are Georgia Supreme Court Justices Britt Grant (40) and Keith Blackwell (42), 8th U.S. Circuit Court of Appeals Judge David Stras of Minnesota (43), 11th U.S. Circuit Court of Appeals Judge Kevin Newsom of Alabama (45), 7th U.S. Circuit Court of Appeals Judge Amy Coney Barrett of Indiana (46), Sen. Mike Lee of Utah (47), 6th U.S. Circuit Court of Appeals Judge Joan Larsen of Michigan (49) and 6th U.S. Circuit Court of Appeals Judge Amul Thapar of Kentucky (49).

Court watchers agree that the trend is for presidents to choose younger nominees, although they are not sold on the wisdom of that move.

“The trend among presidents is to get younger and younger nominees. If this trend continues, we should have our first fetal nominee within 10 years,” said Jonathan Turley, a law professor at George Washington University.

Scott Boddery, a professor at Gettysburg College, said age can be a double-edged sword. Young nominees have a longer tenure on the court, but inexperience could fumble a confirmation hearing.

“Given the high profile of Supreme Court confirmation proceedings, presenting the Senate with a young, inexperienced jurist would be a political misstep,” said Mr. Boddery.

Many observers are intrigued by Judge Barrett, a former Notre Dame Law School professor who was pressed by Senate Democrats at her confirmation hearing last year over her Catholicism’s impact on her judicial views. While Senate Democrats are likely to oppose any Trump nominee, rejecting a female candidate in the midst of a midterm election campaign could complicate their work.

At her circuit court confirmation last year, Judge Barrett received the support of all Senate Republicans and three Democrats: Sens. Joe Donnelly of Indiana, Tim Kaine of Virginia and Joe Manchin III of West Virginia.

Her confirmation vote in October was 55-43, but Josh Blackman, a professor at South Texas College of Law, said lacking widespread bipartisan support isn’t a factor for the president to consider.

“The magic number here is 50. You need 50 plus Pence to break the tie,” Mr. Blackman said. “You don’t need bipartisan support anymore. Maybe that’s somewhat regrettable, but it’s the world we live in now.”

According to legal analysts, we also live in a world where successful Supreme Court nominees tend to have empty portfolios but stellar resumes. Mr. Turley said most easily confirmed justices have few interesting writings or thoughts in their careers.

“Creativity is considered a liability,” he said.

Since Judge Barrett spent most of her career as a professor, her legal writings could provide Democrats with ammunition during a confirmation hearing, questioning her over the death penalty from a Catholic perspective among other issues such as abortion.

Mr. Trump said he is “honored” by Justice Kennedy’s decision to retire now and allow him to nominate a successor.

“I’m so honored that he decided to do this during our term,” Mr. Trump said. “I think that showed confidence in us.”

Mr. Trump said during his campaign for office, he was told that “the most important decision a president can make is the picking of United States Supreme Court justices, if you’re lucky enough to do that.”

“We had a fantastic choice with Justice [Neil M.] Gorsuch … and we’re going to try and do just as good,” he said, referring to his first high court nominee, who was confirmed last year.

Mr. Trump met Thursday night with Senate Judiciary Committee Chairman Charles E. Grassley, Iowa Republican, and a bipartisan group of senators about the vacancy, the White House said. The group included Sen. Susan Collins, Maine Republican; Sen. Lisa Murkowski, Alaska Republican; Sen. Joe Manchin III, West Virginia Democrat; Sen. Joe Donnelly, Indiana Democrat, and Sen. Heidi Heitkamp, North Dakota Democrat.

“The President’s team also talked with more than a dozen other Senators today as part of ongoing outreach to get views and advice from both sides of the aisle on this important nomination,” said press secretary Sarah Huckabee Sanders.

Eight other potential nominees on Mr. Trump’s list are younger than 55. They include one who some consider to be the leading candidate for the nomination: 53-year-old Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit.

The youngest Supreme Court justice ever nominated was Joseph Story, who was 32 when President Madison appointed him in 1811. He served for 34 years until his death.

The longest-serving Supreme Court justice in history was William O. Douglas, nominated by President Franklin D. Roosevelt in 1939. He was confirmed at age 40 and served 36 years and 211 days before leaving the high court in 1975.

Dick Howard, a law professor at the University of Virginia, said circuit court judges with a lot of experience tend to do the best during confirmation hearings. Out of the past 37 Supreme Court nominees since 1945, 23 of them served as circuit court nominees.

“A court of appeals judge is used to the give and take of argument. I think they tend to be nimble on their feet,” Mr. Howard said.

He also said the president will get an idea about how a Supreme Court nominee views certain topics — such as immigration — during a one-on-one meeting.

One of the names on his list, Judge Thomas Hardiman of the 3rd U.S. Circuit Court of Appeals, reportedly spent time working for an immigrant rights legal aid group as a lawyer. Immigration has been one of the president’s most focused topics since he announced his presidential campaign.

“If they start talking about immigration and the president feels like Hardiman is not his man, I think that could rightly decide the matter on the spot,” Mr. Howard said.

Judge Hardiman, though, had an impressive 95-0 confirmation vote in 2007 after he was nominated to the circuit court by President George W. Bush. That could suggest he is a consensus nominee — someone whom Democrats could get behind.

“If someone was already confirmed by that kind of margin, the Senate would probably confirm that person again,” said Carl Tobias, a law professor at the University of Richmond.

• Dave Boyer can be reached at dboyer@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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