President Trump’s SCOTUS List, Part 5

These are the final five potential nominees for the Supreme Court to replace Justice Anthony Kennedy. Of the five, Thapar seems to be the one who may or may not be on the finalist short list. He has been interviewed in the last week or so by President Trump and is reported to be a favorite of Senate Majority Leader Mitch McConnell (R-KY).

Amul  R. Thapar

Personal:

49 y.o, married to Kim Schulte Thapar, and has three children. Raised culturally Hindu but converted to Catholicism as an adult.

Current Position:

Judge, 6th Circuit Court of Appeals. Nominated by Pres. Donald Trump and confirmed by the Senate on May 25, 2017.

Education:

Boston College, B.S., 1991
University of California, Berkeley, Boalt Hall School of Law, J.D., 1994

Clerkships:

Judge S. Arthur Spiegel, U.S. District Court, Southern District of Ohio, 1994-1996
Judge Nathaniel R. Jones, 6th Circuit Court of Appeals, 1996-1997

Previous Positions:

Adjunct professor, University of Cincinnati College of Law, 1995-1997, 2002-2006
Private practice, Washington, D.C., 1997-1999
Trial advocacy instructor, Georgetown University Law Center, 1999-2000
Assistant U.S. attorney, District of Columbia, 1999-2000
General counsel, Equalfooting.com, 2000-2001
Private practice, Cincinnati, Ohio, 2001-2002
Assistant U.S. attorney, Southern District of Ohio, 2002-2006
U.S. attorney for the Eastern District of Kentucky, 2006-2007
Judge, US District Court for the Eastern District of Kentucky, 2007-2017

Scholarship:

(With Benjamin Beaton) The Pragmatism of Interpretation: A Review of Richard A. Poser, the Federal Judiciary, 116 Mich. L. Rev. 819 (2017-2018)

Judicial Opinions:

Thapar’s questionnaire for the Senate Judiciary Committee lists 10 of his most important cases in his opinion. A number involved drug trafficking of opiates. The one that got the most attention in the media, US v. Walli, had the jury convicting pacifists including a Catholic nun on charges of destruction of government property and harming the national defense. The nun wanted to get life in prison but Thapar sentenced her to 35 months. The 6th Circuit threw out the convictions on harming the national defense but affirmed the destruction of government property convictions.

Opposition:

The Alliance for Justice accused Thapar of being “a narrow-minded elitist who would protect corporations, the wealthy, and the powerful over all Americans.” I presume this is because some of his cases involved coal companies as would be expected in eastern Kentucky. There were critical of him in one of his more notable cases, US v. Walli, where antiwar pacifists broke into the Y-12 National Security Complex in Oak Ridge, TN and threw blood on enriched uranium. His decision was reversed in part and affirmed in part by the 6th Circuit.

Timothy M. Tymkovich

Personal:

61 y.o., married to Western novelist Suzanne Lyon, and has two sons, Michael and Jay. Tymkovich is a third generation Coloradan.

Current Position:

Chief Judge, 10th Circuit Court of Appeals. Nominated by Pres. George W. Bush and confirmed by the Senate on April 1, 2003. Chief Judge since 2015.

Education:

Colorado College, B.A., 1979
University of Colorado Law School, J.D., 1982

Clerkships:

Justice William H. Erickson, Colorado Supreme Court, 1982-1983

Previous Positions:

Private practice, Colorado, 1983-1991
Solicitor general, State of Colorado, 1991-1996
Private practice, Denver, Colorado, 1996-2003

Scholarship:

Colorado Survey: Recent Legislation and Colorado Supreme Court Decisions Referendum and Rezoning, 53 U. Colo. L. Rev. 745, (1982)
William H. Erickson, 63 Denv. U. L. Rev. 11 (1985-1986)
(With John Dailey and Paul Farley) A Tale of Three Theories: Reason and Prejudice in the Battle over Amendment 2, 68 U. Colo. L. Rev. 287 (1997)
The Law Review and the Judiciary, 75 U. Colo. L. Rev. [i] (2004)
The Problem with Pretext, 85 Denv. U. L. Rev. 503 (2007-2008)
Are State Constitutions Constitutional, 97 Minn. L. Rev. 1804 (2012-2013)
William H. Erickson (1924-2010), 47 Colo. Law. 72 (2018)

Judicial Opinions:

Tymkovich wrote a dissenting opinion in Bonidy v. USPS in which he argued that post office parking lots were not sensitive places and that the Second Amendment applies outside the home. Tymkovich also wrote the 10th Circuit’s opinion in the Hobby Lobby case in finding that they were not obligated to provide certain forms of birth control due to their religious objections under ObamaCare.

Opposition:

The Alliance for Justice accuses Tymkovich of being hostile to LGBTQ rights and women’s reproductive rights. They also said he opposed Denver’s efforts to ban “assault weapons” which is OK in my book.

Don R. Willett

Personal:

51 y.o., married to Tiffany Willett (also an attorney), and has three children. Willett is the first in his family to attend, much less graduate, college. Adopted father died when Willett was 6 and his mother had to become a truck stop waitress to support the family. Death of his father without a will is what planted the seed in his mind to become a lawyer. Was named Texas Twitter Laureate by Texas House of Representatives.

Current Position:

Judge, 5th Circuit Court of Appeals. Nominated by Pres. Donald Trump. Confirmed by the Senate on Dec. 13, 2017.

Education:

Baylor University, B.B.A., 1988
Duke University School of Law, J.D., 1992
Duke University, M.A., Political Science, 1992
Duke University School of Law, LL.M., 2016

Clerkships:

Judge Jerre S. Williams, 5th Circuit Court of Appeals, 1992-1993

Previous Positions:

Associate, Haynes & Boone, Austin, Texas, 1993-1996
Director of research and special projects, Office of Gov. George W. Bush, Texas, 1996-2000
Domestic policy and special projects advisor, George W. Bush presidential campaign and transition team, 2000-2001
Special assistant to President George W. Bush, White House Office of Faith-Based and Community Initiatives, 2001-2002
Deputy assistant attorney general, Office of Legal Policy, U.S. Department of Justice, 2002-2003
Deputy attorney general for legal counsel, State of Texas, 2003-2005
Justice, Supreme Court of Texas, 2005-2017. Appointed by Gov. Rick Perry.

Scholarship:

(With T. Vance McMahan) Hope from Hopwood: Charting a Positive Civil Rights Course for Texas and the Nation, 10 Stan. L. & Pol’y Rev. 163 (1998-1999)
Book Reviews – An Inconvenient Truth: Conservatives Acting Charitably, 12 Tex. Rev. L. & Pol. 181 (2007-2008)
Foreward, 64 S.M.U. L. Rev. 1 (2011)
Pre-“Originalism”, 36 Harv. J. L.& Public Pol’y 277 (2013)
Don’t Stop the Presses: Texas High Court Justices Help Revitalize a Revered Judicial Journal, 78 Tex. B. J. 628 (2016)
(With John Browning) Rules of Engagement: Exploring Judicial Use of Social Media, 79 Tex. B. J. 100 (2016)
As A Texas Justice, I Know Antonin Scalia Was A Giatn in American Law and Culture, Indep. J. Rev., (Apr 2016)

Judicial Opinions:

Willett served as an Associate Justice on the Texas Supreme Court for over 12 years. In that time he has authored hundreds of opinions. Google Scholar has a list of them here. Interestingly, the first one I read, Tanner v. Nationwide Mutual Fire Ins. Co, found for the injured and against the insurance company. Imagine that. Willett’s first opinion on the 5th Circuit included his usual brand of humor including the conclusion that, “Maturino’s plan for live grenades fell short, but close counts in horseshoes and hand-grenade cases.” How can you not love that?

Opposition:

Let’s face it and conclude that Don Willett’s up from the poor by his own bootstraps background must stick in the craw of his opponents. That plus his sense of humor seems to be off-putting to his opponents on the left. As such, the Alliance for Justice is throwing everything plus the kitchen sink at him. Anti-women’s rights. Check. Anti-gay. Check. Anti-worker. Check. Anti-square cornbread. Check. Oh wait, that last one wasn’t on their list but I’d be surprised if it wasn’t.

Patrick R. Wyrick

Personal:

37 y.o., married to Jamie Talbert Wyrick, and has twin sons and a daughter. Played baseball for the University of Oklahoma. Drafted by the Montreal Expos in 1999. Wife Jamie is a physical therapist who played basketball for OU, is a physical therapist, and is an ovarian cancer survivor.

Current Position:

Associate Justice, District 2, Oklahoma Supreme Court. Nominated by Pres. Donald Trump to be US District Court Judge for the Western District of Oklahoma in April 2018. Passed out of Judiciary Committee and waiting for Senate confirmation.

Education:

University of Oklahoma, BA, 2004
University of Oklahoma School of Law, JD, 2007

Clerkships:

Judge James H. Payne, US District Court for Districts of Eastern, Northern, and Western Oklahoma, 2007-2008

Previous Positions:

RH Relief Pitcher, GCL Marlins and Jamestown Jammers, Minor League Baseball, 2002
Associate, Gable Gotwals, Oklahoma City, OK, 2008-2011
Solicitor General, Oklahoma Attorney General’s office, 2011-2017

Scholarship:

(With Dale Cottingham) “Schedules of Use” for Appropriated Streamwater – What Every Municipality Should Know, 81 Okla. Bar J. 1867 (2010)

Judicial Opinions:

Wyrick has only served on the Oklahoma Supreme Court for about a year and a half. Thus, he has had limited opportunity to establish a long record of judicial opinions. However, as his Senate Judiciary Committee questionnaire makes clear, he has authored both majority opinions and dissenting opinions. He has found in favor of both insurance companies as well as the injured. Wyrick did dissent in a case involving a claim of permanent disability where the person had never had an actual adjudication of his disability and thus wasn’t entitled to payments from a special fund. He also authored an opinion regarding the constitutionality of an OK law that levied “smoking cessation fees” on cigarettes. He found that it was a revenue bill and its method of passage without a super-majority violated the state constitution.

Opposition:

The Alliance for Justice is strongly opposing Wyrick for both the SCOTUS and to be a US District Court judge. They accuse him of being too close to former Oklahoma AG (and former EPA Administrator) Scott Pruitt among other things. On gun rights Wyrick signed an OK AG Opinion saying that Oklahomans can carry concealed or openly if they have a permit from another state. That is anathema to the AFJ. The bulk of their criticism of Wyrick comes from his tenure as Solicitor General and not on his work on the Oklahoma Supreme Court.

Robert P. Young Jr.

Personal:

67 y.o., married to Dr. Linda Hotchkiss, a psychiatrist, and has two grown children.

Current Position:

Partner, Dickinson Wright, Lansing, MI
Adjunct Professor, Michigan State University School of Law

Education:

Harvard University, AB, 1974
Harvard University Law School, JD, 1977

Previous Positions:

Associate and Partner, Dickinson Wright, Detroit, MI, 1978-1992
General Counsel, AAA of Michigan, 1992-1995
Judge, Michigan Court of Appeals, 1995-1999
Associate Justice, Michigan Supreme Court, 1999-2011
Chief Justice, Michigan Supreme Court, 2011-2017

Scholarship:

Co-Editor, Michigan Civil Procedure During Trial, 2d Ed. (1989)
Co-Editor, Michigan Civil Procedure (1999)
State Jurisprudence, the Role of the Courts and the Rule of Law. 8 TEX. REV. LAW & POL. 299 (2004)
A Judicial Traditionalist Confronts Justice Brennan’s School of Judicial Philosophy, 33 Okla. City U. L. Rev. 263 (2008)
“Active Liberty and the Problem of Judicial Oligarchy,” in The Supreme Court and the Idea of the Constitutionalism (2009) Co-Editor, Michigan Civil Procedure, 2d Ed. (2012)

Judicial Opinions:

A year before the US Supreme Court decided the Kelo case, the Michigan Supreme Court ruled in an opinion authored by Justice Young that the Michigan constitution placed strong restrictions on the use of eminent domain for private purposes and the cases in questions did not meet those restrictions. In another case, he authored an advisory ruling by the Michigan Supreme Court saying that requiring voter identification was a “reasonable, nondiscriminatory” requirement to ensure fair elections. He concluded that the right to vote also include the assurance that one’s vote will not be cancelled out by fraudulent votes. Young angered environmentalists when he wrote that in clean water cases under the Michigan Environmental Protection Act plaintiffs must suffer a concrete injury that is actual or imminent in order to have standing and not some hypothetical injury.

Opposition:

The Alliance for Justice mentions both the voter ID and the clean water cases in their muted opposition to Young. I presume it is muted because he is 67 years old and out of the expected age range for Kennedy’s replacement. 


3 thoughts on “President Trump’s SCOTUS List, Part 5”

  1. John, thanks for this 5 part series… I have enjoyed it.. several years ago, I was staying at a hampton inn in western nc, doing work for the utility out there, and we had a power failure that night.. we got power back, and i was reading your blog that am, before breakfast, and you mentioned the hotel and power failure.. so you were there.. sorry I didn’t meet you in the breakfast lounge!.. small world..

    1. That must have been in Murphy. I get out there a couple to three times a year on business and it is sometimes easier to spend the night than make a 2 hour drive early in the morning.

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