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Using LexPredict’s FantasySCOTUS, a Supreme Court prediction market I created in 2009, I surveyed more than a hundred Federalist Society lawyers about who they think President Trump will nominate. (USA Today has already featured our odds). As they swiped their favorite candidate on my iPad, each attorney explained the pros and cons of the short list. The results, which fall into three categories—the front runners, the Kennedy clerks, and the dark horses—provide insights into a process shrouded in secrecy.

I discuss these results in my new essay in The Weekly Standard.

First, the Front Runners:

On February 13, 2016—four hours after Justice Scalia had passed away—CBS News hosted a debate for the GOP presidential candidates. The first question went to Trump. “You’ve said that the president shouldn’t nominate anyone in the rest of his term to replace Justice Scalia,” moderator John Dickerson said. “If you were president, and had a chance with 11 months left to go in your term, wouldn’t it be an abdication to conservatives in particular, not to name a conservative justice with the rest of your term?” Without hesitation, Trump answered, if he was elected, “we could have a Diane Sykes, or you could have a Bill Pryor, we have some fantastic people.” Ten months later, these two distinguished jurists are still the frontrunners.

After the announcement that Jeff Sessions would be nominated as Attorney General, the tide at the Mayflower rolled to Alabama’s native son, Judge William H. Pryor, Jr. A member of the Eleventh Circuit Court of Appeals, with chambers in Birmingham, Pryor was the preferred pick of the majority of attorneys I spoke with. The shared sentiment was that Sessions would most likely push for Pryor. (Although, a dissenting view was that Trump would be leery of selecting too many white guys from Alabama.) Consistently, the Federalists viewed him as a committed originalist, who was a worthy replacement for Justice Scalia. Even Pryor’s defenders, however, acknowledged his liabilities. Pryor stated that Roe v. Wade was the “worst abomination of constitutional law in our history.” During his 2003 confirmation hearing, he stood by that comment, and reiterated his “personal belief” that “the case [was] unsupported by the text and structure of the Constitution.”

Yet, Pryor’s fortitude during his hearing was seen as a virtue. Supporters viewed him as a rock-ribbed conservative who would not drift to the left—unlike past disappointing picks from Republican presidents. Fittingly, before the 2000 election, Pryor offered this supreme supplication at a Federalist Society meeting: “Please, God, no more Souters.” Pryor was universally praised as the antithesis of President George H.W. Bush’s first nomination, moderate-turned-liberal David H. Souter. The only lingering question was whether Trump should make the tougher selection for his first pick, or hold off on Pryor till later. One lawyer noted that if President Reagan had nominated Robert Bork beforeAntonin Scalia, we may have never known of a Justice Anthony Kennedy.

After Judge Pryor, most Federalist Society members favored Judge Diane S. Sykes of the Seventh Circuit Court of Appeals. In 2004, President Bush plucked Sykes from the Wisconsin Supreme Court, where she was elected five years earlier. Over the past decade, Sykes has distinguished herself as a principled jurist, with important decisions securing Second Amendment rights and protecting religious liberty. Having successfully run for elected office—something federal judges never have to do—Sykes has an endearing personality with a firm handshake. Further, at least in confidence, Federalists acknowledged the symbolism of a Trump administration nominating a female jurist. Though, some hoped to keep her on the farm team even longer to fill Justice Ginsburg’s seat.

Sykes’s biggest liability is one she cannot control: She turns 59 in December. Consistently, lawyer after lawyer at the convention told me how much they liked Sykes, but favored Pryor, who was five years younger. For a lifetime appointment, age is more than just a number. By contrast, Chief Justice Roberts, and Justices Scalia and Kagan, were all 50 when nominated. Justice Thomas was only 43. But the nomination would not be unprecedented. Justices Alito and Breyer were both 56. Justice Ginsburg was appointed at the age of 60. For whatever it’s worth, women live on average five years longer than men, 81.2 years to 76.4 years, which would cancel out Judge Pryor’s age-advantage.

Second, the Kennedy Clerks:

At the Mayflower, there was also a burgeoning support for two former law clerks of Justice Kennedy. First, Judge Raymond Kethledge was appointed by President Bush to the Sixth Circuit Court of Appeals when he was only 42. He was easily confirmed, as part of a compromise with Senate Democrats to break a judicial filibuster. Eight years later, though he has not authored many decisions on hot-button issues—he did rule against the IRS in a suit brought by the Tea Party Patriots—Kethledge’s opinions have been recognized as an “exemplar of good legal writing.”

Second, Judge Neil Gorsuch was confirmed to the Tenth Circuit Court of Appeals at the young age of 39. After a decade on the Denver-based court, Gorsuch has built his reputation as a committed originalist, who has questioned judicial deference to the administrative state. While there was not as much excitement to elevate Kethledge and Gorsuch now, the attorneys I spoke with preferred they remain available for a future nomination.

There was a sense of apprehension that Justice Kennedy, the Court’s perennial swing vote, may be averse to letting Donald Trump appoint his replacement. One way to mollify that concern, several lawyers told me, is by choosing one of Justice Kennedy’s former law clerks. Gorsuch and Kethledge would fill that role well. Brett Kavanaugh of the D.C. Circuit Court of Appeals, who also clerked for Justice Kennedy, was also seen as a possible future nominee, even though he was omitted from Trump’s list.

Finally, the Dark Horses:

While most Federalist Society lawyers supported the conventional wisdom, and others favored the Kennedy clerks, several boldly predicted that President Trump may surprise everyone with a dark horse nomination. Leading the pack was Justice Joan Larsen of the Michigan Supreme Court. At only 47 years, Justice Larsen was consistently identified as a possible “sleeper candidate” for the High Court. She clerked for Justice Scalia in 1994, and was appointed to Michigan’s High Court in 2015. Her largest perceived liability, I learned, was a strikingly short-tenure on the bench. A number of Federalists told me she should be kept on the short-list to watch her jurisprudence develop. She may be a possible replacement pick for Justice Ginsburg in the future, to the extent that President Trump wants to select a female for that seat. Though, the lawyers insisted that the White House should not bother putting her on the Sixth Circuit Court of Appeals. There is no need to risk a confrontational confirmation hearing that could be blocked by blue slips from Michigan’s two Democratic senators.

Another unlikely candidate—particularly popular among the Lone Star State’s Federalist delegation—was Justice Don Willett of the Texas Supreme Court. During the Republican primary, Willett mocked Trump on Twitter, with a now-legendary haiku: “Who would the Donald / Name to #SCOTUS? The mind reels. / Weeps – can’t finish tweet.” Fortunately, his twitter finger is second only to his judicial pen. Willett is universally praised by the libertarian wing of the Federalist Society, for his vigorous protection of economic liberty and property rights. Willett’s charming witticism, some said, was also viewed as a positive for an eventual confirmation hearing.

The final dark horse is perhaps the darkest of all: Senator Ted Cruz. Though not on the list, the former Supreme Court clerk and litigator was seen as a possible unifying pick. Cruz delivered a rousing keynote address to the Federalist Society convention, and brought the house down. The conservative and libertarian lawyers in the room—many of whom supported Cruz in the primary (myself included)—would be thrilled to see him on the Court. He is a resolute and committed originalist who, as his brief stint in the Senate shows, does not bend his principles. In many respects, that philosophy is more suited for the nine-member Court than the hundred-member Senate. As well, some of his Democratic and Republican colleagues would be all too happy to confirm him in order to get him out of the Senate! The Texan, who is only forty-five, can likely be re-elected for the next half-century. President Trump may also not want the limited-government Cruz as a thorn in his side. Lawyer after lawyer told me how much they would love Cruz on the Court—an ideal replacement for Justice Scalia—if only he would want the job. Most of the Court’s docket concerns boring matters, like tax or bankruptcy—the sexy constitutional cases are quite rare.

In conclusion, I note that ultimately, the decision will be made by a President whose formative experience was firing and hiring reality-show candidates on national television.

Ultimately, of course, the decision will be made by a single person: President Donald J. Trump. No doubt, advisers on the Justice Department Transition Team and the Federalist Society will provide the President with extensive briefings on each candidate, but as with all nominations, the decision will ultimately be personal. A brief interview in the White House—maybe 15 or 20 minutes—will decide who the next Justice is. With our reality-show president, a judge’s sweaty palms, shiny brow, or sore throat, can frustrate a lifetime’s aspiration in an instant. You’re fired! With the right chemistry, that jurist will fill Justice Scalia’s seat for the next generation. You’re hired!

LexPredict launched FantasyJustice five days ago, and it has already ginned up a lot of interest in the SCOTUS-sweepstakes.

(more…)

Eric Benson of the Texas Observer wrote a lengthy profile of Justice Don Willett of the Texas Supreme Court. I spoke with Eric for about an hour over the past month, explaining to him the contours of originalism, judicial engagement, and of Justice Willett’s decision in Patel.

I am quoted in two places. First, about my friend Justice Willett as a person–he’s exactly as he seems on Twitter:

Such Dad humor served with a side of corn makes Willett sound like a 2016 update of Ward Cleaver — a generous sitcom patriarch who happens to decide legal cases in his spare time — and when you talk to those who know him, that’s more or less the picture you get of the of offline man.

“He loves Texas, he loves Americana, he loves bacon,” said Willett’s friend Josh Blackman, a professor at Houston College of Law.

Second, about how Justice Willett’s engagement could pose a threat to the Trump Administration’s excesses:

But Willett could also prove to be an unexpected thorn in the side of a president eager to enact his agenda by fiat, particularly if he reaches for new and sweeping “police powers.” “If Donald Trump recognized that Willett would invalidate regulations that his government passed, he wouldn’t be so keen on him anymore,” Blackman, the Houston College of Law professor, told me. “I think there could be buyer’s remorse.” If Willett or another like-minded judge ascends to the court, the Trump presidency may very well put to the test whether judicial engagement is a coherent constitutional philosophy that defends individual liberties, or is, as its opponents allege, merely a conservative policy prescription with a hazy legal justification.

I do have one substantial grievances with the piece: it fails to discuss the fact that Patel was decided not under the 14th Amendment, but under the Texas Constitution. For example:

But starting in the 1980s, and especially during the presidency of Barack Obama, conservatives have been warming to the idea that judges can apply far more probing scrutiny to legislative actions relating to unenumerated rights. If liberals could strike down laws on the basis of a “right to privacy,” why, the thinking went, should conservatives be wary to challenge laws that encroached on economic and property rights? Willett’s concurrence in Patel was a full-throated endorsement of this new view.

…

You won’t find the words “right of contract” in the Constitution, nor will you find “economic liberty” or, for that matter, a “right to privacy.” That’s because these are so-called unenumerated rights — individual liberties that may be implied in various portions of the Constitution, but which are never explicitly laid down. But which unenumerated rights exist? And to what extent? Because of this uncertainty, the unenumerated rights tend to produce the noisiest constitutional controversies, and, when they are defended, they lead to howls of “judicial activism.” Lochner laid bare just such a controversy.

A post at the Originalism Blog made the same error.

Unfortunately (from my point of view), it appears that Judge Willett admires a doctrine that Justice Scalia abhorred, called substantive due process (or SDP, which was the stated rationale for Roe v. Wade among other cases).

These critiques are off base.

The Slaughter-House Cases (1872) held (erroneously) that the federal constitution, per the privileges or immunities clause, did not protect any meaningful substantive rights, such as liberty of contract. If such rights were to be protected, the Court noted, it would have to be through the state constitutions. Justice Miller explained for the Court:

But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government.

Three years later, the Texas took up that mantle through Article I, Section 19, which provides:

Sec. 19. DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

The phrase “privileges or immunities” under the Texas State Constitution, by Slaughter House’s own admonition, is the place to protect a right of contract. (Again, I think Slaughter-House was wrong, and the Privileges or Immunities Clause does embrace such a right). Justice Willett draws this important distinction in FN 40 of his Patel concurrence:

While the dissenting Justices favor federal-style deference in economic matters, there is a notable distinction between the Texas Constitution and the federal Constitution as interpreted by federal courts. The Texas Constitution protects not just life, liberty, and property, but also “privileges or immunities,” language the U.S. Supreme Court read out of the Fourteenth Amendment in the Slaughter-House Cases, 83 U.S. 36 (1872).  … When the Court in Slaughter-House upheld 5-4 the Louisiana monopoly law, it stressed that the Privileges or Immunities Clause only protected rights guaranteed by the United States and did not restrict state police power. What’s the consensus view today of Slaughter-House?  … The important point for today’s case is that Slaughter-House, while holding that the Fourteenth Amendment’s Privileges or Immunities Clause offered no protection for individual rights against state officials, underscored that states themselves possess power to protect their citizens’ privileges or immunities, including the right to pursue an honest living against illegitimate state intrusion. As the Court correctly notes, the drafters of the Texas Constitution were doubtless aware of this reservation of power to the states when they passed our own Privileges or Immunities Clause just two years later in 1875.

Willett elaborates on this point in FN 145:

As mentioned above, the Texas Constitution has its own “privileges or immunities”-like language, and while Slaughter-House nullified federal protection, the U.S. Supreme Court declared that states were proper guardians of the “privileges or immunities” of state citizenship, including the right to pursue a calling. Slaughter-House Cases, 83 U.S. 36, 77–78 (1873). Texas did exactly that in its 1875 Constitution, acting quickly on the Court’s statement that protection of individuals’ non-federal privileges and immunities was a state concern.

Patel isn’t a nightmare from the Lochnerian substantive-due-process bogeyman, but–as Justice Brennan reminded us–the power of state constitutions to provide additional protections of rights. State Constitutions, unlike the Federal Constitutions, can be easily amended. Texas’s Constitution, in particular, is really easy to amend through the ballot–nearly 500 have been approved since 1876. If the people are unhappy with Justice Willett’s construction of the state constitution, they can change it with ease. Or, when he is up for election in a few years, they can vote him out of office. Such democratic checks are absent for federal judges who identify unenumerated rights present in 14th Amendment. The specter of Lochnerism is simply inapt.

Today Tony Mauro interviewed me in the National Law Journal about our newly-launched FantasyJustice feature on FantasySCOTUS to predict Justice Scalia’s replacement.

The crowdsourcing survey, the brainchild of Supreme Court blogger and scholar Josh Blackman, got it right in 2010 when Elena Kagan “floated to the top” before President Barack Obama nominated her, as Blackman put it in an interview. “No doubt, President Obama checked our site,” Blackman joked on his blog.

Tony also quoted my Hugo-Black theory for why Ted Cruz may be the nominee–to get him out of the Senate:

Blackman, an associate professor at the South Texas College of Law in Houston, said Cruz has a “nontrivial” chance to be nominated and confirmed, in part because some senators would like nothing better than for him to leave the Senate. “I’m from Texas, and if Ted Cruz stays in the Senate, he’ll be re-elected until he is 90,” Blackman said.

As for whether FantasyJustice will be helpful to the administration:

Will FantasySCOTUS have an impact on Trump’s pick? Blackman said he was not sure, but added, “Donald Trump loves polls.”

After the second day of polling, Judge Kethledge (CA6) jumped to the lead with 39 votes in the last 24 hours. Following Kethledge are Pryor, Cruz, Sykes, and Willett.

Kevin Daley also offered a writeup at the Daily Caller:

Josh Blackman, a law professor at South Texas College of Law in Houston, is curating a LexPredict contest at FantasySCOTUS which allows entrants to pick the most likely nominee from Trump’s 21-person list (plus Republican Sen. Ted Cruz, given rumors abounding on Capitol Hill). FantasySCOTUS is a Supreme Court fantasy league which allows participants to make predictions about cases before the Court, which Blackman also runs. Both FantasySCOTUS and his blog have a following among lawyers, journalists, and law professors.

As did the ABA Journal:

Those who feel like making predictions on the next nominee can do so in a new #FantasyJustice tournament by FantasySCOTUS and LexPredict, according to Josh Blackman’s Blog. Blackman, a professor at South Texas College of Law Houston, is one of the creators of FantasySCOTUS. The #FantasyJustice list has the 21 names on Trump’s list, as well as U.S. Sen. Ted Cruz, R-Texas, who was backed by U.S. Sen. Lindsey Graham, R-South Carolina, during a Veterans Day event, Politico reported.

In a previous post, I suggested that President Trump’s suspension of DAPA should be accompanied by OLC’s repudiation of the November 2014 opinion affirming the legality of DAPA. In response, commentary on Twitter suggested that this represents an attacks the independence of OLC. I have several responses to this point.

First, OLC has not been independent for some time. As has been documented at some length, the Obama Administration consistently disregarded OLC when it provided the wrong answer, with respect to the District of Columbia’s congressional voting rights and the “hostilities” in Libya. It was also kept in the dark with respect to the Bin Laden assassination. This office has been repeatedly demeaned in recent years.

Second, the November 2014 DAPA Opinion was signed by a political appointee, and did not represent the continuation of some sort of longstanding office policy. Further, as revealed by Politico, President Obama personally requested “60 iterations” of the policy, because earlier versions did not go “far enough.” To OLC’s credit, it imposed a limit–deferred action could not be granted to the parents of the DACA beneficiaries. But, beyond that, it expanded the executive’s power in an unprecedented manner. By its own terms, the Opinion admits that DAPA was quite novel, and represented a departure from previous deferred action policies in terms of its size and scope. (The citation to the 1990 Family Fairness policy bordered on disingenuous, because it was premised on a form of releif–extended voluntary departure–that has since been restricted by statute). Rescinding this Opinion would not affect any sort of long-standing executive-branch policy. At a minimum, the discussion of “lawful presence” should be revoked. DAPA without the grant of “lawful presence” would present a very, very different policy.

Third, the November 2014 DAPA Opinion is seriously flawed. For reasons I discuss in this article, I think the Opinion omits important discussions about the constraints immigration law poses on the executive, and overstates the sort of discretion past presidents have exercised. I highly doubt the future OLC will share such a cramped view of Congress’s power over immigration, and it would be entirely appropriate to conform OLC’s opinions with longstanding understandings of the plenary power doctrine.

Fourth, rescinding the OLC Opinion would actually put the cancellation of DAPA on stronger footings. I am generally skeptical of mere Presidential Reversals, where one administration reverses a policy of a previous administration because they see the world differently. If a statute has a fixed meaning, Presidents should not be able to vary that meaning with the times. (This feeds into my general disfavor of Chevron). But if the next administration agues–with serious validity–that the old interpretation was unlawful, this puts the reversal on a much stronger footing. By way of example, OLC Head Jack Goldsmith did not simply withdraw the Torture Memos because he disagreed with them, but because he thought they were illegal. That is why I suggested that any cancellation of DAPA be accompanied by an explanation why: namely that the policy is illegal.

I explained in an earlier post:

On January 20, the President should direct his new Homeland Security Secretary to withdraw Secretary Johnson’s 11/20/14 DAPA memorandum. Simultaneously, the Office of Legal Counsel should formally withdraw its 11/20/14 DAPA opinion. In doing so, OLC should explain that it has now determined that the 2014 opinion was wrong, and that DAPA is both procedurally and substantively unreasonable. It would be sufficient to cite Judge Smith’s opinion for the 5th Circuit. (Judge Smith’s opinion did not address the Take Care clause–something OLC probably does not want to weigh in on). This affirmative repudiation of the basis of the policy prevents future executive branches–in theory at least–from relying on this past practice. As we learned in Noel Canning, the Court is extremely deferential to the internal practices of the executive branch–what Justice Scalia called in his concurring opinion an “adverse possession” theory of executive power. The executive should not be able to suspend the law under the bogus guise of prosecutorial discretion. And lest DAPA supporters think this is a bad idea, I would hope such a clearly-stated policy in the early days of a Trump administration binds President Trump himself in the future.

There are a lot of benefits for pursuing this path, and it would in no way damage the already-tattered independence of OLC.