09:18, January 16 236 0 abajournal.com

2018-01-16 09:18:04
Kavanaugh lands in top six in ‘Scalia-ness’ ranking of SCOTUS contenders; who is No. 1?

Before Neil M. Gorsuch became a U.S. Supreme Court justice, a study of potential Supreme Court nominees had rated him as more “Scalia-like” than Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr. The description proved true as Gorsuch took originalist positions and sided with Justice Clarence Thomas.

Now the study has been updated to rate additional potential nominees in anticipation of additional vacancies on the high court, and one of them gets high marks for “Scalia-ness”—being most like the late Justice Antonin Scalia. The two new judges in the study are Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit and Amul Thapar of the Cincinnati-based 6th U.S. Circuit Court of Appeals.

Kavanaugh landed in the top six for Scalia-ness, while Thapar was at or near the bottom of the list. In the No. 1 spot for his Scalia-ness is Justice Thomas Lee of the Utah Supreme Court, who was also ranked No. 1 in the original study. The revised study (available here) also includes additional variables.

President Donald Trump added Kavanaugh, a former clerk to Justice Anthony M. Kennedy, to his Supreme Court shortlist in November. Trump put Thapar on his shortlist in September 2016 when Thapar was a federal judge in Kentucky. The original study had excluded lower court judges.

Trump had pledged to nominate judges in the mold of Scalia. Some speculated Trump nominated Gorsuch to assuage any doubts about Trump’s Supreme Court nominations that may have been held by Kennedy, who has been the subject of retirement rumors.

The revised study by Mercer University law professor Jeremy Kidd and lawyer Ryan Walters looked at six variables: the percentage of each judge’s opinions that promote originalism; how often the judges cite Scalia (an approximation of devotion to textualism); how often the judges write separate opinions (the percentage was 25.9 percent for Scalia in his last 20 terms); whether their opinions have a less variable writing style, indicating less reliance on law clerks (Scalia was known for writing his own opinions); the number of years as a law professor (nine for Scalia); and the percentage of life lived outside Washington, D.C. (Scalia spent most of his life outside the city).

One part of the revised study rated the judges based only on originalism and Scalia citations, with greater weight given to originalism. Another part rated judges on all six variables, with originalism weighted at 50 percent and textualism weighted at 25 percent.

Trump’s shortlist has 25 possible nominees, but the study excluded anyone who had not been a judge for at least a year when data was collected in 2017, and anyone at least age 60 (given the pressure to select younger people who can create a lasting legacy).

The two-variable study ranked Lee as most Scalia-like. Second place went to Judge Willam Pryor of the Atlanta-based 11th U.S. Circuit Court of Appeals, third place to recently confirmed Judge Don Willett of the New Orleans-based 5th U.S. Circuit Court of Appeals, followed by Gorsuch, Kavanaugh, and Judge Thomas Hardiman of the Philadelphia-based 3rd U.S. Circuit Court of Appeals.

For comparison purposes, the study included Gorsuch along with three other Supreme Court justices: Roberts, Alito and Sonia Sotomayor. In the two-variable study, Roberts and Sotomayor tied for last with Justice Allison Eid of the Colorado Supreme Court, Judge Raymond Kethledge of the 6th Circuit, Justice Joan Larsen of the Michigan Supreme Court, Judge Margaret Ryan of the U.S. Court of Appeals for the Armed Forces, and Thapar.

The six-variable study also ranked Justice Lee of Utah as most Scalia-like, followed by Pryor. Gorsuch jumped to third in this ranking, followed by Willett, Hardiman and Kavanaugh. Roberts was in last place, followed by Thapar, Justice Keith Blackwell of the Georgia Supreme Court, and Sotomayor.