Actually, 2 on Trump’s SCOTUS Short List Probably Aren’t Conservative

By Rachel Alexander Published on May 25, 2016

Last week, Donald Trump issued his short list of potential SCOTUS picks, claiming they were conservatives who would follow conservative hero Antonin Scalia, who died in February.  Trump said he worked with The Federalist Society, a conservative legal organization, and The Heritage Foundation to compile his list. About half are state court judges, who are usually elected so more likely to be conservative, unlike appointed federal judges. Only one is from a big east or west coast city, also an indication they may lean to the right. Three are women. They are all white.

Trump’s list has received extensive praise from conservatives. Fox News, for example claimed “That Trump also hit a home run with his list indicates that he is listening to the best and brightest conservative advisers on this issue.” The Heritage Foundation issued a list of eight judges in March it recommended for the Supreme Court and five appear on Trump’s list: Pryor, Sykes, Colloton, Gruender and Willett.

However, a closer look reveals some troublesome aspects, and at least two on the list, Allison Eid and David Straus, appear to be centrists rather than conservatives.

The Judges’ Real Records


David Stras
At 41, David Stras is Trump’s youngest selection. Republican Governor Tim Pawlenty appointed him to the Minnesota Supreme Court, where he serves as Associate Justice. He is Jewish and clerked for U.S. Supreme Court Justice Clarence Thomas. On his campaign website, Stras says his judicial philosophy is that “judges should respect the will of the people of Minnesota.” He has a keen interest in the U.S. Supreme Court and its judicial appointment process.

However, he has issued a few decisions while on the Minnesota Supreme Court that lean to the left and NPR describes him as “aligned with then Justice Alan Page, a member of the court’s more liberal wing.” For example, in 2014, Stras issued an opinion stating that an order of protection which includes children does not include unborn children in the womb. Minnesota Supreme Court Chief Justice Lori Gildea dissented, writing, “Minnesota law makes clear that an assault against a pregnant woman can also qualify as an assault against her unborn child.”

Allison Eid
Allison Eid clerked for Justice Clarence Thomas and serves on the Colorado Supreme Court. She authored an opinion stating that Colorado universities cannot ban firearms on campus. However, the left-wing site Think Progress is pleased to report, “some of Eid’s writings suggest that she takes a more moderate approach than her former boss, Justice Thomas.” She has hinted that she disagrees with Thomas on originalism, saying that the Supreme Court “has given no indication that it is interested in repeating the mistakes of the past.”

Steven Colloton
Iowan Steven Colloton clerked for the late Chief Justice William Rehnquist. He worked under independent counsel Ken Starr investigating Bill Clinton’s Whitewater investments and the Monica Lewinsky scandal and was appointed to the Eighth Circuit by George W. Bush. He has an excellent record ruling on abortion and birth control issues.

Raymond Gruender

Raymond Gruender was appointed to the Eighth Circuit by George W. Bush. A former prosecutor, he served as Missouri state director for Sen. Bob Dole’s (R-KS) presidential campaign in 1996. Like his fellow Eighth Court judge Colloton, he has an excellent record on controversial abortion and birth control decisions.

Thomas Hardiman
Thomas Hardiman was appointed by George W. Bush to the Third Circuit. Because the Pennsylvania native hasn’t been involved in many controversial political cases, it is not clear how conservative he is. However, he has spoken at Federalist Society meetings, and authored an opinion that the First Amendment does not provide a right for people to film police officers.

Raymond Kethledge
Only 49, the Michigan resident was appointed to the Sixth Circuit by George W. Bush. Raymond Kethledge clerked for Justice Anthony Kennedy, the centrist swing vote on the court. However, Kethledge has made a couple of conservative decisions: he criticized the IRS for failing to produce evidence to a Tea Party group that claimed it had been targeted and sided with the Ohio GOP to disqualify certain votes. He also ruled against the Equal Employment Opportunity Commission, which had sued the test prep company Kaplan, claiming background and credit checks discriminated against minorities.

Joan Larsen
Another younger possibility for the court is 48-year-old Joan Larsen, who serves on the Michigan Supreme Court. She clerked for Scalia and worked as a deputy U.S. attorney general in the Office of Legal Counsel under President George W. Bush. The ACLU accused her of assisting with research there that justified interrogation techniques such as waterboarding. She has also been a speechwriter for the former Secretary of Education in the Reagan Administration, William Bennett.

Thomas Lee
Thomas Lee is the brother of staunch conservative Sen. Mike Lee of Utah, and clerked for Justice Thomas. Their father, Rex Lee, was President Ronald Reagan’s Solicitor General. Lee is a Mormon and currently the associate chief justice of the Utah Supreme Court. He issued an opinion declaring a fetus a “minor child” in wrongful death suits. He has argued before the U.S. Supreme Court on behalf of the Bush administration against lawsuits filed by inmates at Guantanamo Bay, who were attempting to remove their cases from military tribunals to civilian courts.

William Pryor
William Pryor called Roe v. Wade “the worst abomination in constitutional law in history” and stood by this statement during his confirmation hearing for the Eleventh Circuit. In a brief to the U.S. Supreme Court, he compared homosexuality to “prostitution, adultery, necrophilia, bestiality, possession of child pornography and even incest and pedophilia.” Democrats objected to his nomination, but Bush was able to get them around them through a recess appointment. He has an excellent record on abortion and contraceptives.

However, as Attorney General of Alabama, he called for the resignation of Chief Justice Roy Moore for refusing to remove a display of the Ten Commandments from the courthouse.

Diane Sykes

At 58, Sykes is the oldest potential nominee in the list. She is the ex-wife of conservative Wisconsin talk show host Charlie Sykes, who went after Trump hard, helping Ted Cruz to win in the Wisconsin GOP primary. Some have accused Trump of including her because of a vendetta against her husband, but her credentials appear solid. She served on the Wisconsin Supreme Court and was appointed to the Seventh Circuit by George W. Bush. She names Ezell v. Chicago — a decision that barred Chicago from banning firing ranges — among her accomplishments and has an excellent pro-life record.

Don Willett
Willett served in the George W. Bush administrations, both when Bush was Texas governor and his presidential terms. He has a strong record on religious and property rights. He frequently takes jabs at Trump on Twitter.

Can Trump Be Trusted?

Trump had previously named Pryor and Sykes as examples of the type of justices he would choose. He had suggested appointing his sister, who has issued a decision favorable to partial-birth abortion, but later denied that he was serious. “I would say total conflict of interest as far as my sister.”

But how reliable is this list? He told Fox News host Sean Hannity that he might not stick to it.

If elected president, Trump will have to decide whether to withdraw the current proposed nominee, Judge Jane Kelly of the Eighth Circuit, if the Senate stalls the vote until next year. The Daily Beast has analyzed her record and determined she is a moderate — not someone in the vein of Scalia.

While it is encouraging that most on Trump’s list appear fairly conservative, it is disturbing that at least two of them are not. Appointing Eid or Stras could result in another David Souter, the obscure justice appointed by George H. W. Bush who ended up a member of the court’s liberal wing. Even Ronald Reagan appointed two justices who ended up being liberal-leaning centrists, Anthony Kennedy and Sandra Day O’Connor.

Instead of praising his list, conservatives should dig deeper into their records.

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