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Supreme Court Short List: Who Will Be America's Next Top Conservative Justice?

Supreme Court Short List

First Posted: 12/21/2011 4:59 pm Updated: 12/21/2011 5:09 pm

At the Fox News presidential debate in Iowa last week, moderator Megyn Kelly asked the Republican candidates to name their favorite Supreme Court justice. The answers were predictable: conservative stalwarts Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito.

If elected, one of the candidates who volunteered those names (only Ron Paul refused to play ball with Kelly) may have the opportunity to nominate another justice to that list.

The most likely candidate for retirement is liberal Justice Ruth Bader Ginsburg, now 78 years old and recently experiencing a cancer scare, a fainting spell and the loss of her husband. If she chooses to leave -- or, for that matter, 73-year-old swing vote Anthony Kennedy -- a Republican presidential victory in 2012 could lead to the Court's first solid conservative majority since the 1920s.

The GOP has a deep bench of possible nominees thanks to George W. Bush's commitment to filling his administration and the federal courts with men and women culled from the ranks of the Federalist Society.

The Huffington Post asked leading figures in the conservative legal world who might be on a Republican president's Supreme Court short list. Here are the top five names that kept coming up:

Judge Brett Kavanaugh
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Judge Brett Kavanaugh is almost invariably the first name Supreme Court watchers volunteer as the next conservative justice. He sits on the right appeals court, he is the right age, and he has the right résumé.

Kavanaugh's current perch is the U.S. Court of Appeals for the D.C. Circuit, which was the training ground for Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg.

Prior to his judicial appointment, Kavanaugh clerked for Justice Anthony Kennedy, worked on the Starr Report that led to President Clinton's impeachment, served as part of George W. Bush's legal team for the Florida recount battle during the 2000 election, and then moved into the White House Counsel's Office in the Bush administration. In 2006, at the age of 41, he was confirmed to the D.C. Circuit in a nearly party-line vote.

One apparent hitch in Kavanaugh's consistently conservative record as a judge is his recent dissent in an Affordable Care Act case, in which he advocated throwing out a challenge to the health care overhaul on a technicality. But on closer inspection, his dissent is hardly an act of ideological heresy. Rather, he was practicing the judicial restraint that Scalia has long preached, choosing to defer to a later day a decision on a law he clearly detests in the hopes that the political process will erase it from the statute books.

Notable Opinion: Seven-Sky v. Holder. Dissenting, he wrote, "Between now and 2015, Congress might keep the mandate as-is and the President may enforce it as-is. If that happens, the federal courts would resolve the resulting constitutional case by our best lights and would not shy away from a necessary constitutional decision. But history tells us to cross that bridge only if and when we need to. Unlike the majority opinion, I would adhere to the text of the Anti-Injunction Act and leave these momentous constitutional issues for another day -- a day that may never come."

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