Trump Should Add These People to His Supreme Court List

Judicial appointments have probably been this administration’s biggest success, with Trump having shepherded more newly confirmed federal judges in one term than any president except Jimmy Carter.

August 20, 2020 • Commentary
This article appeared on Newsweek on August 20, 2020.

Four years ago, one of the ways that then‐​presidential candidate Donald Trump disrupted the campaign was by publicly revealing a list of potential Supreme Court nominees, which he later expanded and pledged to pick from. Justice Antonin Scalia’s passing in February 2016 had elevated the political potency of the Supreme Court in the election even more directly than would the usual debates over abortion, guns and other legal controversies. If Hillary Clinton had been able to appoint Scalia’s successor, so many policy areas would be headed in substantially different directions. Instead, Trump produced a list of judges that held the Republican coalition together and, ultimately, attracted swing voters in key states.

Now, having appointed two justices from that list, the president heads into a re‐​election campaign where the Supreme Court, and judicial appointments more broadly, is no less of an issue than it was four years ago. Justice Ruth Bader Ginsburg’s recent cancer treatment is just the latest health concern this 87‐​year‐​old progressive icon has faced. She’s obviously trying to outlive the Trump presidency, but another come‐​from‐​behind win this November would make that hard. And don’t forget that Justice Stephen Breyer just turned 82—while Justice Clarence Thomas is 72, after serving nearly 30 years on the Court, and Justice Samuel Alito is 70 and may be getting restless after 15 years of his own service.

That’s why it was smart that Trump announced in June that he’d be issuing a new list by September 1. That deadline is less than two weeks away now, so it’s high time to focus on what that list should look like.

Start with the old list of 24 judges: the original 11 from May 2016, another 10 added that September and another five added in 2017, minus the now‐​confirmed Justices Neil Gorsuch and Brett Kavanaugh. Then look at who’s aged out; when longevity is key, you won’t see a repeat of Justice Ginsburg, the only sexagenarian to join the Court since Lewis F. Powell in 1971. Indeed, the only nominees over 55 in that near‐​half‐​century were the unsuccessful Robert Bork, Harriet Miers and Merrick Garland.

So cut all those over 55, which leaves us with 14 people, none of whom have done anything to disqualify themselves as far as I can tell, and some of whom have only augmented their status. This baseline consists of the following:

  • 10 federal circuit court judges: Amy Coney Barrett, Allison Eid, Britt Grant, Thomas Hardiman, Raymond Kethledge, Joan Larsen, Kevin Newsom, David Stras, Amul Thapar and Don Willett;
  • two state supreme court justices: Keith Blackwell of Georgia (who is returning to private practice in November) and Thomas Lee of Utah;
  • one federal district court judge, Patrick Wyrick (formerly of the Oklahoma Supreme Court); and
  • one U.S. senator, Mike Lee (R-UT).

Notably, Trump has already appointed all of the federal judges there except Hardiman and Kethledge (both short‐​listers for the Gorsuch and Kavanaugh seats). And indeed, judicial appointments have probably been this administration’s biggest success, with Trump having shepherded more newly confirmed federal judges in one term than any president except Jimmy Carter—who got to fill many new judgeships as a sort of consolation for not having any Supreme Court opportunities.

Moreover, the ratio of solid, “movement” nominees to establishmentarian hacks is exceedingly high. This administration has surpassed even George W. Bush in picking committed and youthful originalists, particularly in the circuit courts, and getting them through the Senate successfully.

It’s hard to narrow that deep bench down to just the 11 spots available to get the SCOTUS list back up to 25. There are a few obvious contenders, who in the couple of years they’ve been on the bench have distinguished themselves across a range of legal areas. Here I would put Fifth Circuit Judges James Ho and Andrew Oldham, as well as D.C. Circuit Judge Neomi Rao. The depth and breadth of their writing, and their commitment to the rule of law, make it no exaggeration to call them superstars.

Then I’ll add four more recent appointees: Second Circuit Judges Steven Menashi and Michael Park, plus Ninth Circuit Judges Patrick Bumatay and Kenneth Lee. All of them are already making their mark and transforming the jurisprudence in their respective circuits in a positive direction.

My next three picks deviate from the norm because they’re professors, rather than judges. But that shouldn’t scare you: The goal, after all, is to find people with demonstrated commitment to originalism and textualism, and with the courage to take bold stands regardless of the political consequences. I can think of no age‐​appropriate academics better on those criteria than Case Western’s Jonathan Adler, Georgetown’s Nicholas Quinn Rosenkranz and UCLA’s Eugene Volokh.

That leaves one spot. It’s a wild card of sorts, so I’ll name the youngest member of my list, Justin Walker (38), currently serving on the federal district court in Louisville, Kentucky. Judge Walker has been confirmed to the D.C. Circuit, which he’ll join next month, but he hasn’t been twiddling his thumbs in the meantime. After issuing a barnburner of an opinion that enjoined Louisville from enforcing pandemic‐​related restrictions against a drive‐​in church service in April, just last week Walker handed down important orders regarding religious and economic liberty, respectively. He is, and will continue to be, one to watch.

There are many others I could name to the list—perhaps to be used if Democrats and Republicans engage in a series of reciprocal court‐​packing schemes—but this exercise really shows the embarrassment of judicial riches on offer. And even though I’ve focused on finding the best candidates, in terms of both interpretive theory and intellectual rigor, the diversity of backgrounds is also striking.

There are three immigrants (Ho, Kenneth Lee and Volokh); six Asian‐​Americans, including the first‐​ever Filipino‐​American circuit judge, Bumatay (who also happens to be gay, both of which facts led home‐​state senator Kamala Harris to oppose him, as his appointment made it more difficult to portray the Trump administration as bigoted); many from quite humble roots (notably Hardiman, Walker and Willett); and generally people from all over the country (not just the Acela corridor and coastal California) and many law schools (not just Harvard and Yale).

I’m a naturalized American myself, so it makes me proud to see this list as the best that America has for the highest court in the land. I hope that the list President Trump puts out in coming days overlaps significantly with what I’ve come up with here. It could be his best shot at securing a second term.

About the Author
Ilya Shapiro

Ilya Shapiro is a vice president of the Cato Institute, director of the Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review.