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A breakdown of Trump’s top choices for the Supreme Court

Claire Chretien Claire Chretien Follow Claire

Calvin Freiburger contributed to this report.

ANALYSIS

WASHINGTON, D.C., July 5, 2018 (LifeSiteNews) – It’s been far from a quiet midsummer in the nation’s capital as President Trump gears up to nominate a Supreme Court justice whose judicial philosophy could have a significant effect on the future of abortion and family issues.

The retirement of pro-homosexual and sometimes pro-abortion Justice Anthony Kennedy has led to much media speculation about whether Roe v. Wade, which legalized abortion on demand in the U.S., and even Obergefell v. Hodges, which imposed same-sex “marriage” in every state, could be overturned.

The Associated Press is reporting that President Trump has narrowed his list of potential nominees down to three judges: Amy Coney Barrett, Brett Kavanaugh, and Raymond Kethledge.

Those three have all met with the president. The others with whom Trump has met or spoken are Sen. Mike Lee, R-UT, Thomas Hardiman, Joan Larsen, and Amul Thapar. The details of Trump and Lee's conversation aren't clear.

Trump says he will announce his pick by July 9.

Of the rumored top three, NPR reported this afternoon that "two sources close to the process" tell them Barrett and Kavanaugh are on the "inside track" and are the top two.

The potential nominees are on the list of Supreme Court candidates from whom Trump says he will pick. It’s also possible Sen. Mike Lee, R-UT, or Texas Judge Don Willett could be nominated. The latter is known for his humorous Twitter feed.

And given Trump’s unconventional style, the nominee could also be someone on the list who hasn’t gotten much public attention since Kennedy’s retirement. Rumors about who the nominee will be are constantly in flux.

One of Trump’s campaign promises was that he would nominate pro-life Supreme Court justices. He says he’s “probably” not asking the candidates about where they stand on Roe v. Wade but that they’ll be “conservative.”

Nominees don’t typically say how they would rule on future cases during their U.S. Senate confirmation hearings but are grilled about contentious cases nonetheless.

In order to confirm Trump’s nominee, a simple majority in the Senate will have to vote for him or her.

Republicans likely have 51 votes in favor of the nominee – but Sen. John McCain, one of those key votes, has cancer and hasn’t voted since December. Without McCain, the vote could be 50-49 and the nomination would still succeed. But McCain not voting would require a “yes” from pro-abortion Republicans Sen. Susan Collins of Maine and Sen. Lisa Murkowski of Alaska.

Collins says she won’t support anyone who demonstrates “hostility” toward legal abortion. She voted to confirm Gorsuch and recently said she doesn’t think he would vote against Roe v. Wade, even though most legal experts and commentators predict he would.

The three Democrats who voted to confirm Neil Gorsuch, Sen. Joe Donnelly of Indiana, Sen. Joe Manchin of West Virginia, and Sen. Heidi Heitkamp of North Dakota, could also determine whether the nomination fails. They are all up for re-election in states that voted heavily for Trump.

If all Senate Democrats vote no, either Collins or Murkowski could kill the nomination. If all Democrats vote no, both would need to vote yes for the nominee to be confirmed. There is also the possibility of McCain resigning and letting another (presumably pro-life) Republican take his place.

Amy Coney Barrett

Amy Coney Barrett became a hero to social conservatives when, during her confirmation hearing for the U.S. Court of Appeals for the Seventh Circuit, Democratic Senator Dianne Feinstein attacked her for her Catholic faith, saying, “when you read your speeches, the conclusion one draws is that the dogma lives loudly within you.”

She faced similar remarks from Sen. Dick Durbin, D-IL, who asked her if she considers herself an “orthodox Catholic.”

So stunning were the Democrats’ questions, asked in spite of the fact that the U.S. Constitution prohibits any “religious test” from being a “qualification to any Office or public Trust under the United States,” that the president of Princeton University condemned them.

Feinstein’s comments inspired Catholics to make and sell t-shirts and mugs saying the dogma “lives loudly” within them.

Barrett, a former University of Notre Dame law professor and member of that school’s Faculty for Life group, was eventually confirmed. Three Democrats (Manchin, Donnelly, and Sen. Tim Kaine of Virginia) joined the Republican “yes” votes.

As soon as Trump nominated her to become a judge, Barrett became subject to attacks from a leftist group called the “Alliance for Justice” that warned she was a threat to “reproductive rights.”

In October 2015, Barrett signed a letter with other prominent female Catholic intellectuals to the prelates at the Ordinary Synod on the Family expressing “solidarity with our sisters in the developing world against what Pope Francis has described as ‘forms of ideological colonization which are out to destroy the family.’”

“We see the teachings of the Church as truth—a source of authentic freedom, equality, and happiness for women,” the letter said. The Church's teachings on human sexuality, human life, and marriage “provide a sure guide to the Christian life, promote women’s flourishing, and serve to protect the poor and most vulnerable among us.”

It has also been reported, and used as a bludgeon by Planned Parenthood, that Barrett signed a letter published by Becket (formerly the Becket Fund for Religious Liberty) criticizing the Obama administration’s contraception mandate. That letter does not appear at what the abortion industry lists as the original location on the group’s website.

Barrett has seven children. She is a former clerk for Supreme Court Justice Antonin Scalia.

Brett Kavanaugh

Some pro-life advocates have been wary of Brett Kavanaugh of the D.C. Circuit Court of Appeals.

As a D.C. Court of Appeals judge, Kavanaugh sided with Priests for Life when it fought the Obama administration over being forced to fund its employees' contraception. 

However, he also suggested the government has a “compelling interest in facilitating access to contraception for the employees of...religious organizations” who do not want to be involved in assisting with contraception.  

“Unlike other dissenters, who maintained that there is no compelling government interest in facilitating access to contraception, Kavanaugh would have ruled that a compelling interest does exist, but the government can achieve it in other ways,” Edith Roberts at SCOTUS blog explained.

(The case was eventually settled and the Trump administration has been dismantling and ending the anti-conscience rules imposed by the Obama administration.)

White House sources told the Washington Examiner that pro-life advocates had expressed concern over Kavanaugh’s nomination.

Ed Wheelan of the Ethics and Public Policy Center and Kelly Shackleford of First Liberty Institute maintain that Kavanaugh has a strong record on religious liberty.

Kavanaugh “volunteered his time almost 20 years ago to work on a religious liberty case at the [U.S.] Supreme Court with me and Jay Sekulow,” according to Shackleford. “He has been committed to the Constitution and religious liberty for a long time.”

As Vox reported, Kavanaugh “represented Cuban child Elian Gonzalez pro bono during the conservative battle to keep him from returning to Cuba.”

Roberts called Kavanaugh’s position in Garza v. Hargan, about whether illegal immigrant minors have the right to a government-facilitated abortion on U.S. soil, “conservative” but noted he “did not go as far as one of his colleagues.”

She further explained:

In Garza v. Hargan, a pregnant undocumented teen in immigration custody wanted to obtain an abortion, but was prevented by her government custodians from doing so. Kavanaugh wrote a panel decision vacating a district-court order that required the government to allow the teen to leave the detention facility to obtain the abortion; the panel imposed an additional waiting period to give the government time to obtain a sponsor. The en banc court reversed. Kavanaugh dissented, arguing that the en banc ruling was “ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.” In a separate dissent, Judge Karen LeCraft Henderson maintained that as a noncitizen, the teen had no due-process right to the abortion. Kavanaugh, in contrast, noted that the government had conceded the teen’s right to an abortion. He went on to assert that delaying the procedure while the government sought a sponsor was permissible under the Supreme Court’s precedent because it did not impose an undue burden on that right. At the government’s request, the Supreme Court vacated the D.C. Circuit’s decision this month in a per curiam decision in Azar v. Garza, ruling that the case became moot through no fault of the government’s when the teen obtained the abortion.

Raymond Kethledge

Kethledge, of the U.S. Court of Appeals for the 6th Circuit, doesn’t have much of a record on social issues, but tends to write textualist opinions.

As LifeSiteNews has previously reported, when Trump added him to his list of potential Supreme Court nominees, NARAL fretted that Judge Kethledge “was the Judiciary Committee counsel for Sen. Spencer Abraham while Sen. Abraham was pushing for the Federal Abortion Ban. He also supported the Supreme Court nomination of Samuel Alito.” He was part of an opinion citing IRS officials’ years of resistance to turning over documents about alleged discrimination against conservative organizations.

Minority Leader Sen. Chuck Schumer, D-NY, took it upon himself to tweet his concerns about Kethledge today, warning that Kethledge must have passed Trump’s “litmus test” on overturning Roe v. Wade and will pose a threat to “women’s reproductive freedom.”

Schumer also cited Kethledge’s aforementioned role as counsel for Sen. Abraham. Schumer didn’t elaborate on the type of abortion procedure for which Abraham was pushing to abolish – a law that the Supreme Court later upheld because it blurred the line between abortion and infanticide.

Sen. Mike Lee

Sen. Mike Lee is well-known to the pro-life and pro-family movements for his strong record defending the right to life and religious freedom in the U.S. Senate.

He's said Roe v. Wade "has insinuated into the law a poisonous notion, the notion that some human beings may be treated as things" in a speech outlining the humanity of the pre-born given on the Senate floor during this year's March for Life. 

Lee's pro-life voting record includes voting for and defending the Pain-Capable Unborn Child Protection Act, which would ban most abortions on babies after 20 weeks.

If Lee were to be nominated, his Senate seat could possibly go to a Democrat, something he and/or Trump may not be willing to risk. His nomination would also put any Democrats with whom he's closely worked in an awkward position were they to vote against or strongly oppose his nomination. The Daily Caller has reported that Lee is out of the running.

Joan Larsen

Larsen is 48, meaning she could likely serve on the court for another 30 or more years. A number of pro-life leaders wrote a letter to Trump when he was in the process of picking Scalia's replacement urging him against nominating Larsen. They labeled her a candidate who lacks a "pro-life record." According to that letter, she has publicly mentioned Roe but never condemned it.

Last year Andy Schlafly, son of the late Phyllis Schlafly, sparred with Ed Whelan over Larsen's credentials.

Larsen's "paper trail as a state supreme court justice is thin," Amy Howe of SCOTUS blog wrote. "During her short tenure on the bench, she has not addressed any hot-button issues...Beyond her legal opinions, Larsen’s paper trail is similarly slender but right-leaning. In 2012, she donated $500 to Mitt Romney’s presidential campaign. She is listed as an 'expert' on the website of the Federalist Society, a conservative legal group, and has moderated panels organized by the group. However, when she was nominated to the Michigan Supreme Court, she indicated that she wasn’t sure whether she is actually considered a member of the Federalist Society."

Larsen has written that it would be an "understatement in the extreme" to call the Supreme Court's nixing of a Texas law prohibiting sodomy "revolutionary" but criticized the way the majority decision cited international law.

Howe explained:

Larsen’s other writings, although few, also reflect a conservative bent. In 2004, she published an article in the Ohio State Law Journal on the Supreme Court’s use of foreign and international laws to interpret the U.S. Constitution. Suggesting that it “would be an understatement in the extreme to call the Supreme Court’s decision in Lawrence v. Texas” – in which the justices, by a vote of 6-3, struck down a Texas law criminalizing consensual private sexual activity by same-sex couples – “revolutionary,” Larsen criticized the majority’s failure to offer “a thoughtful and thorough justification” for its reliance on international law. “Until they do,” Larsen asserted, “it seems we are better off to abandon this particular use of foreign and international law.” 

Larsen is also a former Scalia clerk.

Thomas Hardiman

Thomas Hardiman of the U.S. Court of Appeals for the 3rd Circuit was rumored to be a top contender to replace Scalia, ultimately losing that spot to Gorsuch. Abortion lobby group NARAL has criticized Hardiman for apparently making a donation to the National Right to Life Committee before becoming a judge. Hardiman also doesn't have much of a paper trail on the abortion issue. He ruled in favor of a pro-life activist's free speech rights outside the Liberty Bell.

And, "in April, Hardiman allowed the Little Sisters of the Poor, a Catholic order of nuns, to intervene in a lawsuit against Trump’s plan to expand employer exemptions from an Obamacare birth control insurance requirement," Reuters reported on July 3. "Though the case was not directly about abortion, groups favoring abortion rights worry that Hardiman’s ruling signals his sympathies on the issue."

The far-left publication Think Progress labeled Hardiman "one of the more enigmatic names on Trump’s list of potential judges " as "he appears to have had more luck steering away from controversial cases than his colleagues on the Eighth Circuit."  

Trump’s full list of potential Supreme Court nominees can be viewed here

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