I spoke with John Malcolm, Director of the Heritage Foundation’s Meese Center for Legal & Judicial Studies about President-elect Trump’s selection process for a Supreme Court nominee Tuesday morning:
HH: John Malcolm is the director of the Heritage Foundation’s Meese Center for Legal and Judicial Studies. You can follow him on Twitter, @Malcolm_John. John, good morning, thank you for joining me this clear out your desk week in Washington, D.C., great to have you.
JM: (laughing) It’s good to be with you, Hugh.
HH: John, I spent a lot of time when I wrote a new book, The Fourth Way, talking about how Article III appointments are going to define the Trump presidency. Do you agree with me on that assessment?
JM: Yeah, I sure do. I mean, we’ve seen a tremendous switch over the Obama years. And it’s sort of time to take that back. I mean, when Barack Obama took the oath of office, one out of the 13 courts of appeal, federal courts of appeals, had a majority of Democratic appointees. That’s the 9th Circuit. Now, there are 9 out of 13, and you’ve seen the courts become more progressive in terms of some of their rulings on a number of very important issues. President-Elect Trump has over a hundred vacancies that he is going to inherit. It’s about an eighth of the federal judiciary. And if he gets an eight year term, he will have an opportunity to not only fill a majority of the seats on the lower courts, but also quite possibly several Supreme Court justices.
HH: Now three months ago, I despaired, actually, of originalism, and I despaired of the Republican Party, because I feared what Justice Breyer told me, and I recount this in The Fourth Way. He wanted to get the redistricting cases into the Court, which would have destroyed, I believe, the Republican Party. I mean, we were on the edge of losing originalism. Do you agree with that assessment, John?
JM: Well, there are still a couple, at least one originalist left on the Court, Clarence Thomas. He would often duel with Antonin Scalia as to who could be the most originalist on the Court. Originalism is certainly still going to be around in the academia tent and influence in terms of how people practice before the Supreme Court and the lower courts. But yes, getting somebody who is a textualist and an originalist and cares about the text and structure and original public meaning of the Constitution is incredibly important. President-Elect trump has promised to nominate a justice who has that philosophy, and I believe he will.
HH: Well now, I just talked with Robert Costa, who said there is a short list. There are reports that Judge Pryor has been to Trump Tower, which he cannot confirm. Do you know if that’s true?
JM: I only read, I only know what I read in the papers, and it certainly says that he is. He was one of the two names that Donald Trump mentioned during the debates, Diane Sykes being the other one. I’m sort of on record as saying that if I had to pick among these stellar candidates to pick a top one, it would be Bill Pryor, but everybody who’s reported to be on the short list, these are all outstanding men and women who would be great associate Supreme Court justices.
HH: Do you know anyone else on the so-called short list? I know that Pryor and Sykes are on there, but I’ve heard Willett, I’ve heard Stras, I’ve heard Kelly. Who else do you get the sense is on that short list?
JM: I haven’t heard Willett or Stras. The other names that I’ve heard are Neil Gorsuch and Thomas Hardiman and Steve Colloton, Raymond Kethledge, and I did hear a couple of mentions, Joan Larson and Thomas Lee, but I haven’t heard their names mentioned before that.
HH: And how important is it to you, John, that the nominee be younger rather than older? I wrote in The Fourth Way that a whole list of 21, I reproduce it in the book, is terrific, and I know you worked on it and congratulations. But if you’re giving me ten years or 12 years or 16 years, I take it on the Court.
JM: Yeah, look, so the oldest person who’s on the list is Diane Sykes. She’s 59. That’s hardly old. She could certainly give you 20-25-30 years on the Court.
HH: I think Robert Young, actually, is at 65 years old.
JM: Oh, that is true. No, no, that’s true. I was thinking in terms of the short list. That’s right.
HH: Yeah, okay.
JM: Robert Young on the Michigan Supreme Court, the chief justice is 65. That’s right. But in terms of people on the short list, Diane Sykes is the oldest, and she’s hardly old.
JM: So I don’t think that age is going to be a major factor here. you’ve got Joan Larson is 48, so she is the youngest. And if you’re choosing among equals, then you might want to have that be part of the calculus. But at 59, Diane Sykes would certainly be able to render service on the Supreme Court for a whole bunch of years.
HH: Now John, let’s turn to the appellate court. There are 13 vacancies, and I’m out there lobbying for some unusual selections like Carol Platt Liebau, who runs the Yankee Institute in Connecticut, former managing editor of the Harvard Law Review the year after President Obama was the president of it, and you know, just people like that who are going to be hard core originalists, chargers, but maybe not on the bench now or lawyering around. What do you think we’ll see in this first tranche of appellate judges?
JM: That’s hard to say. A lot of it depends on what states they come from, and the reason that I mention that is that the Senate has this bizarre, informal rule that they honor called the blue slip process, in which a Senator has to basically from that state, has to say well, it’s okay for you to put this person on the court. So the process looks very different, say, if you are in Texas, where you have John Cornyn and Ted Cruz where you can get a conservative through very easily. If you’re in California, where you have Dianne Feinstein and Kamala Harris, it’s a little bit tougher. But look, there’s a deep bench there. There are a lot of very, very bright conservative and libertarian lawyers, and you know, with great academic credentials, tremendous trial skills, and excellent demeanor who I think will make fine appellate judges, and there are a lot of people waiting in the wings to fill those positions.
HH: How quickly do you think we’ll see a slate of appellate judges?
JM: I think pretty quickly, actually. I think that this president realizes that the courts are incredibly important. It’s one of the main reasons why he got elected and persuaded a lot of very, very reluctant conservatives.
JM: …that he was a good person to vote for, that the court would be in steady hands, and I think he sees this as an opportunity, and to take advantage of, and to take advantage of quickly, because every one of those days that go by is another lost opportunity.
HH: It is. John Malcolm, ten seconds, you got a prediction on SCOTUS? Is it going to be Pryor?
JM: I think it’ll be Pryor, but you know, I think Hardiman and Colloton and Sykes all have good chances.
HH: Great to talk to you, John, come back early and often.
End of interview.