Chief Justice Young offered this statement, which provides, in part:
As I have previously stated, anybody can make a list.1 In this regard, after serving as a jurist for 21 years, 18 on this Court, I fully acknowledge that, at the age of 65, the probability of my being selected and appointed from the president-elect’s infamous list of United States Supreme Court potential appointees is extraordinarily remote.2 Indeed, the oldest justices ever appointed in the history of the United States Supreme Court were approximately my age at the time of their appointment. (Justice Horace Harmon Lurton was 65 and Charles Evans Hughes was 67). The conflict supposed by intervening defendant is both speculatively hypothetical and, in my case, improbable.
After the disintegration of the political question doctrine and such cases as Bush v Gore,6 courts are increasingly called upon to settle frank political questions. Now, more than ever, a bit of judicial restraint is required to resist the calls of political sirens who urge the courts to engage in politics by another name.7
You hear that Inglorious RBG!?
Young notes in closing that he has never been in touch with the Donald’s team:
Even though no one representing the president-elect has ever contacted me or asked whether I am interested in serving on the United States Supreme Court, being listed is a potential boon, however remote. And now that the person offering this boon is a party in my Court, it is appropriate to remedy this conflict by declining to participate in this matter.
Justice Larsen likewise noted that she did not seek placement on the list, but it warrants recusal:
Before the November 8, 2016 election, now President-elect Donald J. Trump, or his campaign, included me on a list of 21 possible nominees to fill the vacancy on the United States Supreme Court created by the untimely passing of Justice Antonin Scalia. I did not seek inclusion on the list, had no notice of my inclusion before its publication, and have had no contact with the president-elect, or his campaign, regarding the vacancy. Yet the president-elect and his surrogates have repeatedly affirmed his intention to select someone from the list to fill the vacancy. My appearance on the president-elect’s list and his presence as a party in these cases creates a conflict requiring my disqualification. Accordingly, I grant the motions for disqualification.