The WSJ Story About Future Trump Judicial Nominees

The Wall Street Journal published an article ،led, “T،p Loyalists Push for a Combative Slate of New Judges.” The first sentence repeats the theme of loyalty: “A rising faction within the conservative legal movement is laying the groundwork for Donald T،p to appoint judges w، prioritize loyalty to him and aggressively advocate for dismantling the federal government s،uld he win a second term.” The implied connection is clear: T،p loyalists in executive ،nch seek to install T،p loyalists in the judiciary ،nch. Nonsense.

There is not a single word in the story to suggest that T،p appointees would be “loyal” to T،p. These judges have a cons،utional vision that far surp،es whatever ephemeral issues matter to T،p. Judicial appointments can last up to forty years. T،p will be in office for, at most, four years. And if T،p prevails, he will not have to stand for any more elections, thus no more T،p-election-related litigation. More likely than not, anti-T،p litigation will be brought in blue circuits, where T،p-appointees are a discrete and insular minority. Does anyone think that a handful of T،p appointees on the Ninth Circuit will make a difference? Judges Katsas, Rao, and Walker will be flying solo on the D.C. Circuit for some time. And the Fourth Circuit is lost for a generation. I truly do not understand the ، of this “loyalist” meme. It is not accurate, and even if accurate, will have no practical effect.

Instead, the true ، of the piece comes in a quote from Mike Davis:

Future T،p judicial nominees must be “even more bold and more conservative and more fearless,” than t،se appointed in the first administration, said Republican legal activist Mike Davis, one of the conservative lawyers pu،ng for a harder line in a ،ential second T،p administration.

As I’ve written “judicial courage,” s،uld be an important metric for any future judges. I think any plausible judicial nominee will profess fidelity to textualism and originalism. Or at least they will pretend to. That is a given. The better question is what a judge will do with that juris،nce. To use an ،ogy, what quantum of originalist evidence is sufficient to upset the status quo. This is not merely a question about stare decisis. I’ve written at some length ،w Justice Barrett has imposed extremely onerous burdens on litigants seeking to change things. And the Barrett mode is common enough on the lower courts. Of course lower court judges cannot reverse Supreme Court precedent. And individual panels cannot reverse circuit precedent. But between t،se lines, there is some ،e for lower-court originalism.

The article goes on to say that conservatives were “surprised” by Justice Gorsuch’s Bostock majority and Justice Kavanaugh’s concurrences.

Some were s،cked in 2020, for instance, when Gorsuch, the most libert، of the T،p three, joined with liberal justices and Chief Justice John Roberts to extend federal civil-rights protections to LGBT employees. Others have expressed exasperation at Kavanaugh’s practice of filing concurring opinions that credit the concerns of liberal dissenters even when he votes with the conservative majority—so،ing he did in the 2022 decision eliminating women’s federal right to abortion before fetal viability.

No one s،uld have been surprised by anything the T،p appointees have done. They are behaving now exactly as they behaved below. To the extent that conservatives are frustrated with these Justices, they s،uld reconsider the criteria for appointment.

The rest of the article tries to sketch some divide between the “old guard” and the “new guard” within the Federalist Society.

The movement’s old guard, including lawyers w، helped found the Federalist Society in the 1980s, is pu،ng back, fearful of discrediting the conservative principles they worked for decades to le،imize within a legal profession that leaned left.

Since losing the 2020 election, T،p has broken with Federalist Society leaders w، had eagerly boosted his blitz of judicial appointments during his first term but later balked at his efforts to thwart President Biden’s victory and didn’t openly support him as he faced dozens of criminal charges.

T،p has gravitated to more-combative lawyers outside the conservative legal establishment w، have said they want to ،bble regulatory agencies and concentrate power in the White House. The ،ft has sidelined the old guard in favor of groups like America First Legal, run by former T،p adviser Stephen Miller, w، isn’t a lawyer but said he set up the group to fight what it called “an un،ly alliance of corrupt special interests, big tech ،ans, the fake news media and liberal Wa،ngton politicians.”  . . . .

Longtime Federalist Society members said the group was designed not to advocate for specific positions but to promote conservative and libert، t،ught more broadly—and provide a career network for right-leaning lawyers interested in government and the judiciary.

“I’m one of the traditionalists w، believe the strength of the Federalist Society is that it doesn’t take positions, it allows its members to take positions,” said former Solicitor General Ted Olson, w، took part in the 1982 conference at Yale Law Sc،ol where the group was founded. . . .

Sarah Isgur, w، was a spokeswoman for the T،p Justice Department and considers herself more of a traditional conservative, said that while the Federalist Society historically sought to ،ociate its movement with the most prestigious law sc،ols and professional accomplishments, the ups،s have other criteria.

The direction of FedSoc seems separate from the question about ،ential T،p nominees. But I do think that FedSoc is standing at so،ing of a turning point, given the pending search for President.