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A Predictable Pick?

Trump’s SCOTUS nominee likely to be a court insider unwilling to fix what ails the opaque institution

At a time when the country is pining for outsiders to serve in government, that the next Supreme Court justice may be an inside player, and in the mold of the current crop, seems anathema to today’s political ethos.

Yet that’s exactly who President-elect Trump is likely to nominate to the high court in the coming weeks.

Whether Trump will choose from his list of 21 is anyone’s guess, but if he picks a nominee as he has chosen his cabinet, he will not be making good on one of his foremost campaign promises of draining the swamp. The faces we’ve seen flash across our screens since Election Day — from Sen. Jeff Sessions to Rudy Giuliani to a heavy dose of lobbyists — have not been the embodiment of the change we’ve been promised.

Similarly, Trump’s Supreme Court short list reads like a “who’s who” of insiders. Steven Colloton served in the first Bush administration. Neil Gorsuch and Joan Larsen served in the second one. Seven of the 21 were Supreme Court law clerks.

Fixing the Supreme Court, which my organization aspires to do, is about making the most powerful, least accountable part of our government more open and honest by increasing public access to its hearings, strengthening ethics and disclosure rules for its justices and ensuring that its members do not serve for decades on end, as has recently become the norm.

If the current justices are any guide, individuals who have served in presidential administrations, like those noted above, or have previously sat on the federal bench[1], like Trump shortlisters Gorsuch, Colloton, Diane Sykes or William Pryor, are unlikely to push for the types of reforms needed to modernize the court and rein in its expansive power.

Look at the biographies of the current group and then recall how rigid they have been on issues ranging from broadcast access to financial disclosures to judicial tenure.

John Roberts and Clarence Thomas both worked in the Reagan and first Bush administrations, and Roberts assisted Bush with the 2000 Florida recount. Stephen Breyer worked for the ultimate Senate power player, Ted Kennedy. Samuel Alito served in the Reagan administration. Elena Kagan was President Obama’s lawyer.

And while neither were political appointees, Anthony Kennedy and Ruth Bader Ginsburg have served long past what accounts for a reasonable length of service, having sat on the federal bench for a total of 41 and 36 years, respectively.

Much like a presidency, the Supreme Court is a mirror, reflecting where we are as a country at the moments in which its justices are nominated.

While many of Trump’s 62 million voters may prefer ideological purity in a nominee, I suspect many others would favor someone who is independent of the entrenched partisan thinking that has crippled Washington — and someone who maybe has not clerked for a justice, worked in a presidential administration or served on a federal appeals court.

An independent ninth justice could help bring about much needed changes to the court. Such autonomy could free the institution from the types of outmoded traditions on media access, ethics and tenure that has kept it shackled to a bygone era of government opaqueness.

[1] Remember, all federal judges, not just those on the Supreme Court, enjoy life tenure, and 11 of the 13 federal appeals courts prohibit cameras.

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