Gorsuch 2.0. That’s how conservative commentator Hugh Hewitt described Raymond Kethledge, the 6th Circuit judge who reportedly sits near the top of President Trump’s short list of candidates to fill Justice Anthony Kennedy’s Supreme Court seat.
Kethledge has gained the backing of conservatives for his strict, originalist approach to the law, and for his hostility toward an entity loathed on the right: the administrative state. Former White House chief strategist Stephen Bannon once described the “deconstruction of the administrative state” as a central goal of the Trump administration, and it’s one that conservatives think Kethledge could help hasten.
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That belief stems in large part from a speech Kethledge gave last year about the landmark Chevron v. Natural Resources Defense Council case from 1984. The decision in that case broadly required that in situations where the law is ambiguous, courts should defer to the executive branch’s interpretations — a move that gives the executive branch significant power.
Kethledge criticized the approach in his speech at the University of Michigan, arguing that it makes the administrative state less accountable and allows it to cut corners.
The speech came just months after a high-profile 10th Circuit judge wrote a concurring opinion eviscerating the Chevron ruling. That judge’s name? Neil Gorsuch.
Conservative like Hewitt took notice.
In a Washington Post op-ed, Hewitt pointed to Kethledge’s “willingness to challenge so-called Chevron deference toward the vast administrative state, a doctrine dangerous in its corrosive effect on self-government.”
Kethledge has more than just Hewitt’s endorsement going for him. He grew up in Michigan, a crucial Trump swing state, where he attended the University of Michigan as an undergraduate and for law school. He later clerked for the man he hopes to succeed on the Supreme Court, Justice Anthony Kennedy. And he’s served a healthy period of time — a decade — on the U.S. Court of Appeals for the 6th Circuit, which is based in Cincinnati.
Josh Blackman, an associate professor at South Texas College of Law, says one advantage of coming from the 6th Circuit is that it doesn’t see the same level of controversial cases as some of the other circuit courts.
“It doesn’t have ginormous cases like the D.C. Circuit has, so he hasn’t had many earth-shattering opinions,” Blackman said.
That could be useful in tough Senate confirmation hearings.
Legal commentator David Lat agreed.
“Like Gorsuch, Kethledge is a former Kennedy clerk from the heartland, with fantastic credentials and solid conservative views, who everyone knows is conservative, but who can’t be stopped by liberals because there’s just not enough in his record to nail him on,” Lat wrote in his Above the Law blog.
If history is any indication, Kethledge will need that extra firepower if he makes it to the confirmation process. His path to the 6th Circuit was tumultuous.
His first nomination lapsed after six months when the 109th Congress adjourned. Former President George W. Bush renominated him three months later, but Michigan Democratic Sens. Carl Levin and Debbie Stabenow stalled the nomination.
His nomination was advanced in a voice vote by the Senate Judiciary Committee after a deal was struck with the Bush administration regarding stalled nominees.
Kethledge was confirmed by the Senate, also by voice vote, in June 2008, almost two years to the day after he was initially nominated.