Saturday, June 30, 2018

President Trump's SCOTUS List, Part 1

Now that Justice Anthony Kennedy has announced his retirement from the Supreme Court, President Trump has the opportunity to solidify the conservative majority on the court. Kennedy was often seen as a swing vote and his replacement will, most likely, be more in the mold of a Neil Gorsuch than a Justice Kennedy.

Yesterday, President Trump said that he will make his pick known on July 9th. He also announced that he had shortened the list from the original 25 down to five. The five on the short list include two women. He did not announce who had made the cut to his short list. The early speculation on the short list included  Circuit Court of Appeals Judges Brett Kavanaugh, Amal Thapur, Amy Coney Barrett, Thomas Hardiman, and Raymond Kethledge. Obviously, if there are two women on the short list as indicated by the President this early speculative list is incorrect.

Thus, rather than get into the guessing game, I plan to outline what we know about the 25 in a series of five posts. Beyond their education and work history, I am most interested in what they've said or may have written about gun rights and the Second Amendment. The easiest way to break down the list is by alphabetical order.

Amy Coney Barrett

46 y.o., married to Jesse Barrett, an AUSA for Northern Indiana, 7 children. Roman Catholic. 
Current Position:Judge, 7th Circuit Court of Appeals, appointed by Pres. Donald Trump, confirmed Oct. 31, 2017 
Rhodes College, BA, 1994
Univ. of Notre Dame Law School, JD summa cum laude, law review, 1997 
Judge Laurence Silberman, US Court of Appeals for the DC Circuit, 1997-1998
Justice Antonin Scalia, Supreme Court of the United States, 1998-1999 
Previous Positions:Associate, Miller, Cassidy, Larroca & Lewin, Washington, DC., 1999-2001
Adjunct Prof., George Washington University Law School, 2001-2002
John M. Olin Fellow in Law, 2001-2002
Prof. of Law, University of Notre Dame Law School, 2002-2017
Visiting Prof. of Law, University of Virgina Law School, 2007

Congressional Insiders and Outsiders, U.Chi. L. Rev. (forthcoming 2017).
Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017).
Congressional Originalism, 19 U. Penn. J. of Const. L. 1 (2017) (with John Copeland Nagle)
Countering the Majoritarian Difficulty, 31 Const. Comm. 61 (2017).
Statutory Interpretation in The Encyclopedia of American Governance (2016).
Federal Court Jurisdiction in The Encyclopedia of American Governance (2016).
Substantive Canons and Faithful Agency, 90 B.U. L. REV. 109 (2010).
Federal Jurisdiction in Encyclopedia of the Supreme Court of the United States.
Introduction: Stare Decisis and Nonjudicial Actors, 83 Notre Dame Law Review 1147 (2008).
Procedural Common Law, 94 Virginia L. Rev. 813-88 (2008).
The Supervisory Power of the Supreme Court, 103 Colum. L. Rev. 324 (2006).
Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317 (2005).
Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003).
Catholic Judges in Capital Cases, 81 Marquette L.Rev. 303 (1998) (with John H. Garvey) 
Judicial Opinions: In the short time Judge Barrett has been on the 7th Circuit Court of Appeals, she has authored eight majority opinions and one dissent. None of these had to do with issues surrounding either the First or Second Amendments. 
Opposition:Judge Barrett, a practicing Roman Catholic and mother of seven, is loved by evangelicals and hated by the Left. The former hopes she'll vote to overturn Roe v. Wade and the latter expect her to do that and thus find her objectionable. According to the left-wing Alliance for Justice, she decried Roe due to the Supreme Court "creat[ed] through judicial fiat a framework of abortion on demand.” "

Keith R. Blackwell

42 y.o, (July 4, 1975) married to Angela Blackwell, three daughters. 
Current Position:Associate Justice, Georgia Supreme Court, appointed by Gov. Nathan Deal, 2012. 
University of Georgia, AB Summa Cum Laude, First Honor Graduate (4.0 GPA), 1996
University of Georgia School of Law, JD Summa Cum Laude, 1999 
Judge J. L. Edmondson, 11th Circuit Court of Appeals, 1999-2000 
Previous Positions:Associate, Austin and Bird, Atlanta, GA, 2000-2003
Asst DA, Cobb County, GA, 2003-2005
Associate and Partner, Parker, Hudson, Rainer & Dobbs LLP, Atlanta, GA, 2005-2010 (commercial litigation)
Deputy Special Attorney General, Georgia, for constitutional litigation.
Judge, Georgia Court of Appeals, 2010-2012, appointed by Gov. Sonny Perdue

Judicial Opinions:
Concurring Opinion, Hertz v Bennett. The case involved the denial of a carry permit for James Hertz. He had pleaded no contest to five felony charges in 1994 in the state of Florida involving aggravated assault. He received three years probation and six months house arrest which he successfully completed. Under Georgia law, Hertz was not eligible for a carry permit due to his no contest plea on a felony. Blackwell concurred on the result but said:
"no one should misunderstand the Court to suggest that constitutional guarantees extend only as far as the home."
"To the contrary, the Court today applies intermediate scrutiny to [Official Code of Georgia] § 16-11-129, and in so doing, it acknowledges that the constitutional guarantees secure a right to carry firearms in public places, even if that right might be more limited than the right to keep firearms in the home." 
"Second, our decision today is a limited one," says the concurrence, which is joined by Presiding Justice P. Harris Hines and Justice David Nahmias. "[A]lthough the court did not enter a formal adjudication of guilt, it found a factual basis for the plea….In these peculiar circumstances, the Court concludes that the State of Georgia may – consistent with the constitutional guarantees of the right to keep and bear arms – deny Hertz a license to carry firearms in a public place."
Public Comments:
In 2013, in a talk given to students at North Cobb High School, Justice Blackwell had this to say about the Second Amendment:
Blackwell only chimed in briefly to request that the students look into the history of the Second Amendment and why the founding fathers believed it was needed. 
“It was all about limiting the power of government,” he said. “The idea was that there is only so much the government could do if the people are armed. That was fundamentally the idea. 
“I know some folks like to say, well that’s when people had muskets, now we’re talking about modern militaries and people can’t resist those with ordinary firearms.” 
He explained that isn’t the case if the students look at the wars in Vietnam, Iraq and Afghanistan where “ordinary folks” without sophisticated training “gave an awful lot of trouble to our men and women in uniform, who are the best trained and best equipped fighting force in the history of the world.”

Charles T. Canady
64 y.o., is married to Jennifer Houghton Canady, has two teenage daughters. Presbyterian. 
Current Position: Chief Justice, Florida Supreme Court, appointed 2008 by Gov. Charles Crist 
Haverford College, BA, 1976
Yale University Law School, JD, 1979 
Previous Positions:
Private Practice, Holland and Knight, Lakeland, FL, 1979-1982
Private Practice, Lane, Trohn, Lakeland, FL, 1983-1992
Florida House of Representatives, 1984-1990
US House of Representatives, 1993-2001, Chairman of House Judiciary Subcommittee on the Constitution,
General Counsel, Gov. Jeb Bush, 2001-2002
Judge, Florida 2nd Circuit Court of Appeal, 2002-2008

Judicial Opinions:
Dissenting Opinion, Bretherick v. State. Case involved who should be required to have the burden of proof in pre-trial evidentiary hearings involving Florida's Stand Your Ground law. In a 5-2 decision, the Florida Supreme Court held that the burden of proof was on the defendant. Canady in his dissenting opinion said: 
By imposing the burden of proof on the defendant at the pretrial evidentiary hearing, the majority substantially curtails the benefit of the immunity from trial conferred by the Legislature under the Stand Your Ground law. There is no reason to believe that the Legislature intended for a defendant to be denied immunity and subjected to trial when that defendant would be entitled to acquittal at trial on the basis of a Stand Your Ground defense. But the majority’s decision here guarantees that certain defendants who would be entitled to acquittal at trial will nonetheless be deprived of immunity from trial.
2A Votes:
While in the US House of Representatives, Canady voted against the Brady Bill and the Clinton Administration's Assault Weapons Ban. 

Steven M. Colloton
55 y.o., is married to Deborah Colloton, has two daughters. Roman Catholic.

Current Position:
Judge, 8th Circuit Court of Appeals, appointed by Pres. George W. Bush, confirmed on Sept 4, 2003

Princeton University, AB, 1985
Yale University Law School, JD, 1988

Judge Laurence Silberman, US Court of Appeals for the DC Circuit, 1988-1989
Chief Justice William Rehnquist, Supreme Court of the United States, 1989-2000
Previous Positions:
Special assistant to the assistant attorney general, Office of Legal Counsel, U.S. Department of Justice, 1990-1991
Assistant U.S. attorney, Northern District of Iowa, 1991-1999
Associate independent counsel, Whitewater investigation, 1995-1996
Private practice, Iowa, 1999-2001
Adjunct lecturer, University of Iowa College of Law, 2000
U.S. attorney for the Southern District of Iowa, 2001-2003

Judicial Opinions:
As of January 2017, Judge Colloton had authored over 615 majority opinions and numerous concurrences and dissents in his years on the 8th Circuit Court of Appeals. He has four decisions relating directly to the Second Amendment in which he rejected the claims each time. The SCOTUSBlog summarizes them:
We found four pertinent Second Amendment cases. Colloton rejected a Second Amendment challenge to gun laws each time – personally writing an opinion in three of those cases. These are Rodgers v. Knight (rejecting claim that the seizure and retention of a citizen’s firearms by police had violated citizen’s Second Amendment rights); United States v. Bena (rejecting constitutional challenge to federal statute punishing possession of firearms while subject to a court order of protection); and United States v. Lippman (concurring in the judgment and arguing that assuming the Second Amendment confers an individual right to bear arms, the federal prohibition on possession of a firearm by a person subject to a domestic-violence restraining order is constitutional). In United States v. Humphrey Colloton joined, without writing separately, a panel opinion upholding the constitutionality of federal felon-in-possession gun felony statute.

Allison H. Eid

53 y.o, married to Troy Eid, former US Attorney for the District of Colorado, and has a son and daughter.

Current Position:
Judge, 10th Circuit Court of Appeals, appointed by Pres. Donald Trump to replace Justice Neil Gorsuch in 2017. Confirmed on Nov. 2, 2017.
Education:Stanford University, A.B., 1987
University of Chicago Law School, J.D., 1991

Judge Jerry E. Smith, U.S. Court of Appeals for the Fifth Circuit, 1991-1992
Justice Clarence Thomas, Supreme Court of the United States, 1993-1994

Previous Positions:Special Assistant and Speechwriter to Sec. of Education William Bennett, 1987-1988
Associate - commercial and appellate litigation, Arnold and Porter, Washington, DC 1994-1998
Assoc. Prof., University of Colorado School of Law, 1998-2009, 2011-2015 Solicitor General of Colorado, 2005 Associate Justice, Colorado Supreme Court, 2006-2017. Appointed by Gov. Bill Owens and retained by voters in 2008.

Private Party Immunities to Section 1983 Suits, 57 U. Chi. L. Rev. 1323 (1990)
The Tort Reform Debate: The View from Colorado, 31 Seton Hall L. Rev. 740 (2000-2001)
A Spotlight on Structure, 72 U. Colo. L. Rev. 911 (2001)
Epsteinian Torts: Richard A. Epstein, Cases and Materials on Torts, 25 Seattle U. L. Rev. 89 (2001-2002)
Federalism and Formalism, 11 Wm. & Mary Bill Rts. J. 1191 (2002-2003)
Tort Reform and Federalism - The Supreme Court Talks, Bush Listens, 29 Hum. Rts. 10 (2002)
Justice White's Federalism: The (Sometimes) Conflicting Forces of Nationalism, Pragmatism and Judicial Restraint, 74 U. Colo. L. Rev. 1629 (2003)
The Property Clause and New Federalism, 75 U. Colo. L. Rev. 1241 (2004)
Teaching New Federalism, 49 St. Louis U. L.J. 875 (2004-2005)
Preemption and the Federalism Five, 37 Rutgers L.J. 1 (2005-2006)

Judicial Opinions:
Of particular note to my readers would be Eid's opinion  in Board of Regents of the University of Colorado v. Students for Concealed Carry on Campus from 2012. The case was brought to the Colorado Supreme Court by attorney Jim Manley and the Mountain States Legal Foundation as a challenge to the University of Colorado's assertion that Colorado's Concealed Carry Act exempted the university. The Colorado Supreme Court found unanimously for the students. 
From her opinion:

The court of appeals held that the Students stated a claim for relief because the CCA expressly applies to “all areas of the state.” The court further concluded that the Students had stated a claim for relief under article II, section 13 of the Colorado Constitution, which affords individuals the right to bear arms in self-defense. See Students for Concealed Carry on Campus, LLC v. Regents of the U. of Colo., No. 09CA1230, --- P.3d ---, 2010 WL 1492308, at *7, *11 (Colo. App. April 15, 2010). 
We granted certiorari and now affirm. We hold that the CCA’s comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus. Accordingly, we agree with the court of appeals that, by alleging the Policy violates the CCA, the Students have stated a claim for relief. Because we affirm on statutory grounds, we do not consider the Students’ constitutional claim.


The Alliance for Justice calls Eid a "narrow minded elitist" which is laughable. Eid was a young child when her father abandoned the family leaving them with nothing and her mother was suddenly forced into the workforce to support Eid and her sibling. Some of Eid's biggest backers for the 10th Circuit judgeship were Indian tribes as well as the National Native American Bar Association who said she understood those in "Indian Country". Neither the support from the tribes nor her childhood indicate anything near what would be expected of a "narrow minded elitist". She was also opposed by The Leadership Conference and the League of Conservation Voters. Meh!


  1. I would seriously consider removing Canady from the list purely because he is already in his 60s. That gives him a decade or so to serve. Choosing a highly qualified candidate who is 20 years younger makes that much more long term impact.

    1. I think candidates such as Canady, Robert Young of Michigan, and even Diane Sykes are off the table due to their age. They are on the list but that is as far as they'll go. Conversely, judges like Patrick Wyrick of Oklahoma and Britt Grant of Georgia are on the list to help with their nominations to the Court of Appeals. At age 37 and 40 they are really too young.