'Scalia Index' shines light on possible Trump Supreme Court pick
WASHINGTON — The late Justice Antonin Scalia likely would be pleased to see who President Trump is mulling as his replacement.
Two of the federal appeals court judges atop Trump's list as he nears his much-awaited nomination also are near the top of another list: the "Scalia Index," created by legal academics to determine who would come closest to emulating the conservative icon.
While Utah Supreme Court Justice Thomas Lee scores the highest in the three measurements of "Scalia-ness," Judges Neil Gorsuch and William Pryor are close behind. Another federal appeals court judge under active consideration, Thomas Hardiman, is further back.
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Trump said during the second presidential debate in October that he was "looking to appoint judges very much in the mold of Justice Scalia." That got Jeremy Kidd, who teaches at Mercer University's Walter F. George School of Law, and three colleagues wondering how that could be measured.
They came up with three criteria: Originalism, a strict reading of the Constitution as written. Textualism, an equally strict reading of statutes rather than legislative history. And the number of times a judge writes separately from the majority to amplify his or her views — something Scalia did regularly.
The result was a data-filled study released in November and updated last week, when it appeared the search was down to three or four candidates. Their research should be useful to Trump's team, the authors reasoned, "if the goal is to find someone who could step into and even remotely hope to fill the shoes of someone as influential and complex as Justice Scalia."
“I think it gives a little more meat to it than most people do,” Kidd says. “I would like to believe they’ve at least looked at it and considered it.”
That would be good news for Gorsuch, a judge on the U.S. Court of Appeals for the 10th Circuit in Denver, or Pryor, who sits on the 11th Circuit in Atlanta. They emerged as more likely to emulate Scalia than any of 15 judges studied; six others on Trump's list of 21 were not considered.
In fact, Gorsuch and Pryor were much closer to Scalia in their appeals court opinions than the two justices appointed by President George W. Bush — Chief Justice John Roberts and Justice Samuel Alito. Hardiman, who sits on the 3rd Circuit in Philadelphia, was much further down the list.
But how accurate is the study in predicting Scalia's successor?
"This is rudimentary, admittedly," Kidd says. "It’s just better than anyone else has ever done.”