Analysis: A Romney pick for top U.S. court? Frontrunners emerge

WASHINGTON (Reuters) - Now that Mitt Romney is the presumptive Republican nominee for president, the names of people he might appoint to the U.S. Supreme Court are starting to roll off the tongues of conservative activists, lawyers and former Republican administration aides.

U.S. Republican presidential candidate and former Governor of Massachusetts Mitt Romney speaks to supporters in Charlotte, North Carolina April 18, 2012. REUTERS/Chris Keane

While conservatives caution that talk is mere guesswork, an examination of Romney’s record as Massachusetts governor and statements he made on the presidential campaign trail can help shape an early list of frontrunners should he defeat President Barack Obama in the November 6 election, and should he be given the chance to fill a vacancy on the nine-member bench.

As a candidate, Romney has pledged to nominate judges in the mold of the Supreme Court’s four most conservative justices, and he has said the court should overrule Roe v. Wade, the 1973 opinion that said women have a right to an abortion.

Romney formed a committee of lawyers in August 2011 to advise him on court nominations and on legal policy questions led by prominent conservatives such as Robert Bork, whose conservative views led Democrats to block his 1987 nomination to the court.

The campaign declined to comment on potential nominees.


Paul Clement, who served as U.S. solicitor general under President George W. Bush and is now a lawyer in private practice, is the favorite of many conservatives. Clement argued last month for the Supreme Court to strike down Obama’s 2010 healthcare law, and he is defending laws that ban same-sex marriage and that target illegal immigrants.

Clement, 45, would be “at the top of any short list right now,” said Curt Levey, executive director of the Committee for Justice, a group that advocates for conservative nominees.

Asked about Clement, Mary Ann Glendon, a co-chairwoman of Romney’s Justice Advisory Committee, voiced “unbounded admiration” for him.

“He’s the type of person who fits the mold that the governor has pledged to look for,” Glendon said, adding that “it’s much too soon to speculate about names.”

Mentioned as often as Clement is Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit.

Kavanaugh, 47, sits on a court that produced four sitting justices. He has deep roots in Washington, D.C., having worked in the Bush White House and assisted in the 1990s investigation that nearly led to President Bill Clinton’s ouster.

Kavanaugh is known for elaborate opinions such as a 65-page dissent he wrote in November exploring how an 1867 tax law barred courts from considering Obama’s healthcare law until 2015.

A third possibility, Judge Diane Sykes, is often mentioned as a likely Romney nominee if the next person to leave the Supreme Court is Justice Ruth Bader Ginsburg, the court’s senior woman justice. Ginsburg has survived cancer twice.

Sykes, 54, was appointed to a Chicago-based U.S. appeals court in 2004, overcoming Democratic criticism of her record in abortion-related cases. Last year, she pleased advocates for gun rights when she wrote an opinion saying Chicago could not enforce a ban on firing ranges within city limits.

Four justices — Ginsburg, Stephen Breyer, Anthony Kennedy and Antonin Scalia — will be 74 or older at the start of the next presidential term in January.


All justices are appointed by presidents for life but require confirmation by the U.S. Senate.

A president looks for a nominee who shares his views on legal issues, such as the authority of the federal government versus the states. Those views can be easier to discern when the potential justice has been a judge.

Presidents and their aides weigh demographics — looking for someone not too old to ensure a legacy, often with special consideration for women and minorities — and what would be politically popular.

Three additional U.S. appeals court judges from the middle of the country get mentioned among conservatives as Supreme Court possibilities.

Steven Colloton, 49, sits on a St. Louis-based court. Though he worked on the Clinton investigation, he spent most of his career as a prosecutor and private lawyer in Iowa.

Neil Gorsuch, 44, is on a Denver-based court. He worked for a law firm in Washington, D.C., before going to work at Bush’s Justice Department and becoming a judge in 2006.

Jeffrey Sutton, 51, joined a Cincinnati-based court after years in private practice and Ohio state government. Though long a favorite of conservatives, he wrote an opinion in June 2011 upholding the healthcare law that drew their disappointment.

A Romney administration would have options if it wanted to put forward a practicing lawyer, as Obama did in 2010 when he nominated Justice Elena Kagan, then U.S. solicitor general.

Miguel Estrada, 50, was blocked from an appeals court by Senate Democrats in 2003 after a long fight, but he is still a successful lawyer and a personal friend of Kagan.

Viet Dinh, 44, is a law partner of Clement at the Washington, D.C., firm Bancroft. A former Justice Department official, he would be the first Asian-American justice.

Two former judges still get mentioned: Michael Luttig, 57, the Boeing Co general counsel, and Michael McConnell, 56, a Stanford University law professor.


Romney, Massachusetts governor from 2003 to 2007, did not have a chance to name someone to that state’s highest court. But he sent signals that he wanted courts to move in a more conservative direction.

Romney frequently railed against a 2003 ruling from the Massachusetts Supreme Judicial Court that legalized same-sex marriage. In 2005, he told the Federalist Society, a conservative legal group, that the justices were threatening “great peril to the culture of our entire land,” The Boston Globe reported at the time.

Although Romney’s picks for lower state courts included many Democrats, his advisers say he was constrained by the state’s liberal tilt, and he chose a Federalist Society member to run his selection process.

Many conservatives take Romney’s commitment to nominate judges in the conservative mold to mean he will not pick a “stealth” candidate whose views are unknown, or a personal friend as Bush did in nominating Harriet Miers in 2005. A rebellion among senators and activists forced Miers to withdraw, and Bush chose Samuel Alito in her place.

James Bopp, general counsel of the National Right to Life Committee, an anti-abortion group, said Romney would have “a goodly number of qualified candidates with a conservative judicial philosophy. Those are the people he’d be looking to.”

Reporting by David Ingram; Editing by Howard Goller and Amy Stevens; Filing by Vicki Allen