Supreme Court Nominees

Among Trump's potential SCOTUS picks, these rate highest for 'Scalia-ness,' study says

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Justice Antonin Scalia.

Donald Trump has pledged to appoint a Supreme Court nominee in the mold of the late Justice Antonin Scalia. Does his shortlist of potential nominees make good on the promise?

Mercer University law professor Jeremy Kidd and three other researchers sought the answer by focusing on the potential picks’ approach to the law, rather than the outcomes of their judicial decisions, the Huffington Post reports. (Stories on Trump’s picks are here and here.)

Their study measures three variables: adherence to originalism, citations of Scalia’s nonjudicial writings, and willingness to express views by writing separate opinions. (The separate opinions variable, the authors explain, indicates “intellectual moxie and a willingness to stand up for how one derives a legal answer.”)

The judge scoring highest on the researchers’ “Scalia-ness” scale is Utah Supreme Court Justice Thomas Lee. Other high scorers are Judge Neil Gorsuch of the Denver-based 10th U.S. Circuit Court of Appeals, Judge William Pryor of the Atlanta-based 11th U.S. Circuit Court of Appeals, and Colorado Supreme Court Justice Allison Eid.

The study didn’t rate all 21 potential nominees. U.S. Sen. Mike Lee of Utah wasn’t included because he has never been a judge. Federal district judges and judges over the age of 60 were considered long shots, so they were also left out of the study.

The study admits to weaknesses. It is difficult to compare federal and state judges, and some judges have been on the bench for a short time, making it difficult to measure Scalia-ness. And keyword searches used terms related to originalism that could have been underinclusive.

Kidd says he hopes the study will add meaning to Trump’s pledge to nominate conservatives to the Supreme Court. “I doubt there will ever be anyone that will come close to replacing Scalia,” he told the Huffington Post. “But as far as someone who could fill the same judicial role, I think there are people out there who probably could.”

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