Justice Anthony Kennedy, a longtime member of the Supreme Court and frequent swing vote, announced last Wednesday, June 27 that he will retire, giving President Donald Trump the chance to fill his seat.
The opportunity will allow President Donald Trump to make a major, lasting mark on the nation’s highest court by putting in place a second justice, after his choice to elevate Neil Gorsuch to the Supreme Court last year following the death of Justice Antonin Scalia in 2016.
Trump, reacting to the news at the White House, said he had spoken with Kennedy earlier Wednesday and asked the outgoing justice about possible contenders to replace him.
Moments after Supreme Court Justice Anthony Kennedy announced his retirement, the media went rife with speculation on possible replacements, including Indian American jurist Amul Thapar, who currently serves on the Sixth Circuit of Appeals.
President Donald Trump told reporters after Kennedy’s announcement that a search for a replacement would begin immediately. During his remarks, Trump pointed to a list of potential picks for the court that he had maintained during the campaign and updated last fall. Fox News hinted at the president’s shortlist of six possibilities, all federal court judges including Thapar, Thomas Hardiman, Brett Kavanaugh, Amy Coney Barrett, Joan Larsen and Raymond Kethledge.
Hardiman and Thapar were finalists for the seat that went to Justice Neil Gorsuch — more than a year after the abrupt death of Justice Antonin Scalia — and were personally interviewed by the president, according to Fox News.
Thapar is the first Indian American to serve on the Sixth Circuit Court of Appeals and the second Indian American federal appellate court judge in U.S. history. He is a friend of Senate Majority leader Mitch McConnell, R-Kentucky. The Alliance for Justice has dubbed him “ultraconservative.”
With a second Supreme Court pick less than 18 months into his presidency, Trump is poised to cement conservative control of the court and fire up supporters eager for a rightward shift on divisive social issues like abortion and gay rights.
Trump’s nominee must win confirmation by the Senate. Republicans control the chamber but only by a slim majority, making the views of moderates, including some Democrats, important.
Thapar, 49, was handpicked by Senate Majority Leader Mitch McConnell to serve as the US attorney for the Eastern District of Kentucky. In 2006, he went on to a seat on the US District Court for the Eastern District of Kentucky.
Trump nominated Thapar to the 6th US Circuit Court of Appeals in 2017. He was born in Michigan and served in government as well as private practice. In 2007, Thapar was the first American of South Asian descent to be named to an Article III federal judgeship.
Although Thapar has moved to list of seven potential nominees from the original 25 when a replacement for Scalia was being considered, sources said that “he’s still a longshot,” unless his patron, Senate Majority Leader Mitch McConnell (R- Ky.) “really goes to bat for him.”
Sources said that Thapar was the only minority in the new short list. The original list had been prepared for the White House by the Federalist Society and the conservative D.C. think tank, The Heritage Foundation and comprised Thapar and two other minorities: Frederico Moreno, a federal district judge in South Florida, who is Hispanic, and Robert Young, a retired Michigan Supreme Court judge, who is African-American.
The Supreme Court already has an African-American Clarence Thomas, and a Hispanic, Sonia Sotomayor and if Thapar were nominated by Trump he would be the first Asian-American named to the high court.
McConnell last year convinced Trump to nominate Thapar to the Sixth U.S. Circuit Court of Appeals and he was confirmed 52-44 by the Senate in May 2017, largely on a partisan vote.
At the time Thapar was confirmed for Circuit Court, Curt Levey, executive director for the Committee for Justice, noted: “Perhaps the most important thing about Thapar’s quick confirmation is that it puts him in a perfect position to fill any Supreme Court vacancies that occur in 2018 or thereafter.”
Thapar was first nominated by President George W. Bush on May 24, 2007, to a seat vacated by Joseph M. Hood and confirmed by the Senate on Dec. 13, 2007. He received commission on Jan. 4, 2008, becoming the nation’s first Article III judge of South Asian descent.
The Leadership Conference on Civil and Human Rights – now led by Indian American civil rights activist Vanita Gupta beginning in June – noted in May 2017 as Thapar was undergoing his Senate confirmation process for the Appeals Court seat that the jurist had a history of controversial rulings, including a case in which he allowed a diabetic inmate to continue to be denied insulin.
Thapar also sentenced three pacifists — including an 82-year-old nun — to lengthy prison terms after they broke into a nuclear power plant in Oakridge, Tennessee, and spray-painted peace slogans, noted the Leadership Conference.
But the South Asian Bar Association of North America and the National Asian Pacific American Bar Association have lauded the Thapar. Vichal Kumar, president of SABA-NA, noted last May after the Senate confirmation: “Judge Thapar’s confirmation further cements his legacy as a pioneer, esteemed jurist and dedicated public servant. We anticipate that Judge Thapar’s renowned dedication to his craft and commendable judicial temperament will serve him well in this integral position.” SABA awarded Thapar its Pioneer Award in 2010. NAPABA awarded Thapar its Trailblazer Award in 2015.
As the U.S. Attorney for the Eastern District of Kentucky from 2006-2007, Thapar was appointed to the Attorney General’s Advisory Committee, where he chaired the AGAC’s Controlled Substances and Asset Forfeiture subcommittee. He also served on the Terrorism and National Security subcommittee, the Violent Crime subcommittee, and Child Exploitation working group.
During his confirmation hearing on April 28, 2017, Thapar noted that though the Federalist Society and the conservative Heritage Foundation had named him as a possible Supreme Court nominee on a list prepared for then-candidate Trump, he had no allegiance to either organization. “I’m my own judge, and I hope my track record speaks to that,” he said.
McConnell has already made clear he would push for a confirmation vote by fall before the mid-term elections, refusing to acquiesce to Sen. Chuck Schumer (D-N.Y.) and other Democrats that it should be held only after the November elections.