Trump Should Take a Serious Look at Amul Thapar for the Supreme Court

If Trump decides to nominate Thapar, the nation will get a young, charismatic, personable, textualist and originalist who could serve on the court for three decades or more.
July 5, 2018 • Commentary
This article appeared on the Washington Examiner on July 5, 2018.

Justice Anthony Kennedy’s retirement has given President Trump the chance to fill a second Supreme Court vacancy in less than two years. The president hit a home run with Justice Neil Gorsuch, who helped deliver conservatives and libertarians their best Supreme Court term in some time. Can Trump do it again? According to recent reports, he has interviewed seven candidates. All appear to be originalists and textualists of varying shades, and each could make an excellent justice. But keep your eye on Judge Amul Thapar, President Trump’s first judicial nominee after Justice Gorsuch but someone I haven’t seen much written about beyond simple name‐​mentioning.

Thapar had already been on Trump’s longer Supreme Court list as a federal district judge — he was a semifinalist for the Gorsuch slot — and was quickly elevated to the U.S. Court of Appeals for the Sixth Circuit, which covers politically critical states in the middle of the country. That marked his third Senate confirmation, having also been the U.S. attorney (chief federal prosecutor) for eastern Kentucky, based across the river from Cincinnati.

If nominated and confirmed, Thapar would make history as the first Asian‐​American on the Supreme Court. His parents emigrated from India and have lived out the American dream (something that I personally can relate to). Thapar’s father worked at a Ford factory and started his own small heating and air conditioning business in Toledo. His mother owned a successful restaurant but sold it after 9/11 so that she could help troops transition back to civilian life. To top it off, Thapar was born in Michigan, grew up attending public schools in Ohio, and lives in Kentucky— a Rust Belt trifecta.

Thapar’s background suggests he shares the values of ordinary citizens, including a deep appreciation for America’s opportunity. Thapar was on a plane on 9/11. After learning of the attacks mid‐​air, he vowed that if his plane landed safely, he would dedicate his career to serving the country he loved. Thapar promptly left his elite law firm and began what has now been 12 years of his public service.

Perhaps it’s unsurprising given his background, but Thapar’s jurisprudence suggests he well understands a fundamental American truth worth repeating this week as we celebrate Independence Day: In the United States, we the people govern ourselves. In legal practice, individual liberty and self‐​governance require a commitment to textualism and originalism, such that judges stick to the text of the laws they apply and the original meaning of the Constitution.

But don’t just take that from his biography — it’s for his record that Thapar, at 49, is regarded as one of the nation’s brightest young judges. Take the separation of powers. When a criminal defendant argued that Thapar should oversee the Justice Department’s internal procedures for prosecuting murderers, Thapar held that the Constitution prohibited a judge from micromanaging the executive branch’s core law‐​enforcement powers. Thapar explained in United States v. Slone (2013) that federal courts “may not direct the Executive Branch how to exercise its traditional prosecutorial discretion,” which “includes the decision whether to seek the death penalty.” He specifically relied on the long American and English traditions of executive control over prosecution.

Or take federalism: In Bowling v. Parker (2012), Judge Thapar likewise relied on history when faced with a broad constitutional challenge to Congress’s restrictions on habeas corpus relief for state prisoners. He rejected the argument that Congress unconstitutionally limited prisoner relitigation. He did so after examining how the writ was understood “at the founding” and explained why Congress acted consistently with the Constitution’s original public meaning.

Thapar has an equally strong record on interpreting statutes. His comprehensive analysis of the criminal forfeiture statute in United States v. Solomon (2016) nicely showcases his principles, even in a highly technical case. “Start with the text,” he wrote. Binding precedent said the forfeiture statute imposed joint liability on criminals, so he did what the higher court required. But Thapar was not shy about explaining his contrary view. He looked to dictionary definitions, context, rules of interpretation, and the “background law” of criminal forfeiture going “back to the founding” to explain why that the precedent was wrong. The Supreme Court ultimately vindicated Judge Thapar, unanimously rejecting the Sixth Circuit’s atextual approach in Honeycutt v. United States (2017).

Given our vast administrative state, Judge Thapar has warily guarded against the temptation to deem a complex law “ambiguous” so that an agency can rewrite the provision to mean whatever the agency would like. In Duncan v. Muzyn (from 2018, one of his first cases as a Sixth Circuit judge), he aptly explained that “simply calling something ambiguous does not make it so, even if interpretation is no easy task.” To apply the provision’s plain language, Thapar rigorously examined the text using dictionary definitions and surrounding context to conclude that one side’s interpretation “better account[ed] for the language at issue.” Indeed, he has even questioned whether deferring to agencies’ interpretations of their own regulations makes sense at all — see M.L. Johnson Family Properties v. Jewell (2017) — echoing the concerns raised in recent years by Justices Gorsuch and Clarence Thomas.

These are just a few examples from a stellar record. Over the last decade, Thapar has issued over 600 opinions, being reversed only 11 times. He even wrote 36 opinions (and joined 84 others) as an appellate judge “sitting by designation” while he was still on the trial bench — meaning that he sought out and was asked to undertake far more work and greater responsibility than was required.

Choose one of his writings at random and the same principle always shines through: a judge holding himself to the judiciary’s proper role by hewing closely to the text of the law. And he’s done so in a stylish way, even having an opinion selected as one of the best judicial opinions of 2015 by The Green Bag, a respected quirky legal journal. (Full disclosure: They’ve honored me for brief‐​writing, so I may have a soft spot for their rankings.)

I particularly like the accessibility of Thapar’s opinions, which also hearkens to Gorsuch’s appeal. For example, a dry insurance dispute that turned on whether the amount claimed reached the minimum required for federal jurisdiction included a description of the humble penny, which “tend[s] to sit at the bottom of change jars or vanish into the cracks between couch cushions.” Elsewhere, Thapar wrote that if a barkeep “promised to pour the man a glass of Pappy Van Winkle [a rare, expensive bourbon] but gave him a slug of Old Crow [cheap swill] instead, well, that would be fraud.”

President Trump has many great choices for the Supreme Court and in other circumstances I might be writing about one of them. But if he decides to nominate Thapar, the nation will get a young, charismatic, personable, textualist and originalist who could serve on the court for three decades or more.

About the Author
Ilya Shapiro

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