Kethledge Rising, As SCOTUS Infighting Reaches Fever Pitch

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Judge Raymond Kethledge’s interview with President Donald Trump has placed him in serious contention to succeed Justice Anthony Kennedy on the U.S. Supreme Court, multiple sources tell The Daily Caller News Foundation.

Sources with knowledge of the process told TheDCNF that Kethledge had a strong interview with the president, and remains under very serious consideration.

Other knowledgeable sources say Judge Amy Barrett’s interview with Trump was satisfactory and that she remains viable for a Supreme Court appointment, either now or in the future. The strength of Kethledge’s meeting, however, seems to have scrambled the field.

Bloomberg also reported that Trump was impressed with Kethledge.

The fluidity of the process has prompted an intense shadow campaign, as surrogates lobby and spin aggressively for their preferred candidate. Conservative legal Washington has splintered into competing camps, all of whom are racing to gain Trump’s ear.

The situation resembles Chief Justice John Roberts’ appointment to the Supreme Court, in which the fratricidal infighting between frontrunners J. Harvie Wilkinson and Michael Luttig helped clear the way for Roberts, as Jan Crawford’s 2007 account of Bush-era confirmations reported.

Sources familiar with the president’s thinking say he has seen a deluge of pressure from all camps but maintains an open mind.

Kethledge was interviewed for the last vacancy on the Supreme Court. A source with knowledge of the previous confirmation process said Kethledge was asked which of the other candidates under consideration he would recommend to succeed the late Justice Antonin Scalia. Kethledge made an extended and forceful case for then-Judge Neil Gorsuch, who was selected for the seat.

At 51, Kethledge could serve on the Court for decades. He was elevated to the 6th U.S. Circuit Court of Appeals by President George W. Bush in 2008. Before his appointment, he worked for GOP Sen. Spencer Abraham, served as in-house counsel at the Ford Motor Co. and spent several years in private practice. He is a graduate of the University of Michigan Law School who clerked for Justice Anthony Kennedy. (RELATED: Mike Lee Not Under Consideration For The Supreme Court)

Writing in the Yale Journal on Regulation’s “Notice & Comment” blog, Charles Cooper and Ryan Snyder describe Kethledge as a disciplined, text-driven judge who does the hard work of interpreting laws, especially where others are willing to rely on other doctrines to avoid parsing difficult statutes. Cooper is a prominent Washington lawyer and an alumnus of Ronald Reagan’s Justice Department, while Snyder is an attorney in the Columbus offices of Jones Day who clerked for Kethledge and Chief Justice John Roberts.

Kethledge has also expressed fidelity to originalism, a method championed by the late Justice Antonin Scalia through which the Constitution is interpreted according to the original meaning of its text. In a December 2017 lecture at Vanderbilt Law School, he described the goal of constitutional interpretation as discovering “the meaning that the citizens bound by the law would have ascribed to it at the time it was approved.”

He also joined an opinion in March 2018 that opened with a direct invocation of originalism.

“Faithful adherence to the Constitution and its amendments requires us to examine their terms as they were commonly understood when the text was adopted and ratified, rather than applying meaning derived years later that may weaken constitutional rights,” the opinion reads.

Kethledge is co-author of a book on the virtue of solitude, which profiles international historical figures, including Winston Churchill and Pope John Paul II with input from contemporary figures.

All told, one source said the strength of Kethledge’s record should carry him through the process, which has caused infighting and strife within both the White House and conservative legal Washington.

“We are at the point in the process where substance matters far more than fame, and no one beats Ray Kethledge on substance,” the source said.

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