Two Trump SCOTUS Short-Listers Are Unqualified—For Any Federal Court
On April 10, 2018, President Trump nominated to the federal bench Britt Grant (40 years old) and Patrick Wyrick (37 years old). Of course the fact that the President has nominated such young and inexperienced persons is by now unremarkable. Ryan Holte was just 34 when nominated to a federal judgeship; Brett Talley, whose nomination was defeated after blog posts defending the early KKK came to light, was 36 years old. What is remarkable about Grant and Wyrick, however, is that this was not the first time they appeared on a White House list. In fact, both youngsters are on Trump’s list as possible Supreme Court nominees.
Their careers mirror each other: both graduated from law school in 2007; each spent a year clerking for federal judges, worked in private practice for less than four years, and then joined their state’s Office of the Attorney General; in 2017, Wyrick was appointed to the Oklahoma Supreme Court and Grant was appointed to the Georgia Supreme Court.
Clearly, Grant and Wyrick are not on the President’s list of potential Supreme Court nominees because of their extensive legal and judicial experience. Seasoned legal luminaries they are not (in contrast with just one person recently considered for the Supreme Court, Merrick Garland, who at the time of his nomination had nearly 40 years of legal experience — nearly 20 as an appellate judge). So why are a 37 year old and a 40 year old with limited judicial experience on the short list for the Supreme Court?
Like many of Trump’s choices for the bench, both nominees (of course, both are members of the Federalist Society) have in just a few short years managed to rack up impressive histories of advancing far-right positions.
As Solicitor General of Oklahoma, Wyrick was Scott Pruitt’s “dear friend and trusted counselor,” and worked with Pruitt to sue the Environmental Protection Agency and weaken environmental protections. He worked to limit the rights of women, defending unconstitutional laws in Oklahoma that sought to restrict access to Plan B contraceptives and supporting limitations on access to contraception coverage in the Hobby Lobby case. He also defended the state’s unconstitutional efforts to weaken protections for injured workers. Wyrick attracted controversy when Justice Sonia Sotomayor accused him of misleading the Supreme Court during his defense of Oklahoma’s death penalty protocol. Said Justice Sotomayor, “I am substantially disturbed that in your brief you made factual statements that were not supported by the sources [you cited], and in fact directly contradicted… So nothing you say or read to me am I going to believe, frankly, until I see it with my own eyes in the context, okay?”
As Solicitor General of Georgia, Britt Grant expressed support for a “fetal pain” law passed by the Georgia legislature that made it illegal for doctors to perform abortions pre-viability. She joined states challenging the Affordable Care Act and worked to eliminate access to contraception for millions of women. She opposed equality for LGBTQ Americans, fighting against marriage equality and efforts to protect transgender students. She worked to undermine the Voting Rights Act, and fought collective bargaining for public sector workers. She also opposed efforts to protect immigrants and defended purposeful discrimination in jury selection.
There are serious questions about whether either of these nominees can be impartial and unbiased, because to date they have devoted their careers to undermining critical rights and legal protections. Of course, these are the records that have won them places on President Trump’s Supreme Court short list, so as long as they remain on that list there is little reason to believe that they will diverge from the deeply conservative paths they have trodden thus far. In an intriguing 2013 study, Richard Posner, Lee Epstein and William Landes found that “auditioners,” judges with reason to believe they are under consideration for a Supreme Court promotion, exhibited significantly different decision-making behavior on issues that arouse public emotion than their non-auditioner counterparts. The authors concluded that “judges who have a good shot at the Supreme Court tend to alter their judicial behavior in order to increase their chances, though this is just an average tendency.”
Most of the people on Trump’s Supreme Court short list will never become Supreme Court justices. But even if Grant and Wyrick are not further elevated, as federal judges appointed for life, each will make a tremendous impact on the lives of millions of people. Their extreme, ideological records should cause deep concern for the millions of people in Oklahoma, Georgia, Florida and Alabama who rely on fair-minded, unbiased judges to protect hard-won rights and freedoms.