What we know about Trump, Harris, and judicial nominations
Any openings on the U.S. Supreme Court would depend in part on who wins the White House. ( Photo by Jabin Botsford/The Washington Post)
Legal activist Leonard Leo was an architect of what is arguably Donald Trump’s most significant legacy as president: remaking the federal judiciary and installing a conservative supermajority on the Supreme Court that delivered long-sought victories for the right on abortion, guns and federal regulation.
But the leader of the Federalist Society—who had a falling out with Trump, The Washington Post reported in February—has not been tapped to reprise that role this election cycle.
Instead, Trump is seeking guidance from a set of more controversial lawyers, according to a person familiar with the former president’s thinking on legal issues who spoke on the condition of anonymity to be candid.
Mike Davis, a former Senate aide and clerk to Justice Neil M. Gorsuch whom Trump has touted as a potential member of his next administration, is said to be among those advising Trump on potential judicial nominees. Davis said in an interview that he looked forward to working with Trump on his judicial picks in his second term, just as he did in Trump’s first term, when he helped get Gorsuch win confirmation to the Supreme Court.
Davis has grabbed attention for inflammatory comments, including that he wants to put migrant children in cages and would enact a “reign of terror” if he were appointed Trump’s attorney general.
The person familiar with Trump’s legal thinking said Mark Paoletta, an administration attorney who signed off on a delay of aid to Ukraine that led to Trump’s first impeachment, is also expected to advise Trump on legal issues. Paoletta did not respond to a request for comment.
A third adviser is expected to be Jeffrey Clark, the former Justice Department attorney charged in Georgia with participating in an effort to overturn the results of the 2020 election, this person said. Clark, who has pleaded not guilty, did not respond to a request for an interview.
“President Trump appointed three fantastic Supreme Court Justices in his first term and greatly respects the institution,” Karoline Leavitt, a Trump campaign spokeswoman, said in a statement. She did not respond to other questions.
In September 2023, Trump promised a crowd at a religious gathering that he would appoint “rock solid” conservatives to the Supreme Court in the mold of Justices Antonin Scalia, Samuel A. Alito Jr. and Clarence Thomas if he wins a second term. He has also repeatedly promised during his campaign to release a list of Supreme Courts picks—something he also did during his 2016 and 2020 campaigns. But no list has materialized.
Kamala Harris’s options
Trump’s Democratic opponent, Vice President Kamala Harris, has said little about her plans for judicial appointments. Her campaign declined to comment for this article.
Harris, a former prosecutor, California attorney general and U.S. senator, gained attention for sharply questioning Trump’s Supreme Court nominees during Senate hearings while she served on the Judiciary Committee.
Some clues about her judicial philosophy come from the Biden administration, which has chosen judges who are significantly more diverse than those chosen by any previous president, said Paul M. Collins Jr., professor of legal studies and political science at the University of Massachusetts at Amherst.
Biden appointed the first Black woman to the Supreme Court, Ketanji Brown Jackson, and more than 60 percent of his nominees to the federal bench have been minorities. Harris has touted the diversity of the administration’s picks and reportedly pushed Biden to select Jackson.
Collins said he expects Harris to follow the template of other recent Democratic presidents in not veering too far to the left on judicial nominations.
“She’d be looking for nominees that reflect the diversity of America and also have a sort of moderate, liberal ideology,” Collins said. “Folks who would respect civil rights and liberties and protect precedents set by the Warren court in particular in areas like criminal rights, privacy. Reproductive freedom is going to continue to be a very large issue.”
Ty Cobb, who was part of Trump’s White House legal team, said whoever wins the election will be forced to pick centrists for the bench because of the challenge of getting nominees confirmed by what is likely to be a narrowly divided Senate.
The electoral map and current polls show Republicans have a greater likelihood of winning control of the upper chamber, which is now controlled by Democrats.
Sen. John Cornyn (Texas), who could become majority leader of a Republican-controlled Senate, has said he wouldn’t schedule a vote on a Harris Supreme Court nominee who was too liberal.
At the same time, such moderate Republicans as Lisa Murkowski (Alaska) and Susan Collins (Maine) might balk at more extreme picks by Trump. “I don’t think either [Trump or Harris] will depart greatly from the norms,” Cobb said.
How many openings?
President Donald Trump greets Supreme Court Justice Brett M. Kavanaugh at Kavanaugh’s White House swearing-in on Oct. 8, 2018. (Photo by Jabin Botsford/The Washington Post)The next president will probably have less of a chance to put their mark on the federal judiciary than Trump or Biden did. Trump appointed 243 judges, while Biden has won approval for 213 to date. Taken together, that constitutes roughly half of the nation’s nearly 900 federal judgeships, with just 45 federal judgeships vacant.
The numbers will fluctuate before the inauguration in January, but the next president could have the fewest openings to fill at the start of a presidential term since 1989, according to figures compiled by Russell Wheeler, a fellow at the Brookings Institution who tracks judicial appointments.
Any openings on the Supreme Court would depend in part on who wins the White House.
A Trump victory would allow one or both of the court’s oldest justices, Clarence Thomas, 76, and Samuel A. Alito Jr., 74, to resign without jeopardizing the conservative supermajority.
But conservative justices would most likely try to stay on through a Democratic administration, which means Harris’s most likely opportunity to appoint a justice would come if the court’s oldest liberal, Sonia Sotomayor, 70, were to retire. Some Democrats have called for Sotomayor to relinquish her seat while Biden is still president because she has battled diabetes. They worry health complications could force her to step down at some future point when a Democrat is not in the White House.
None of the three justices have offered any indication they plan to retire, however, regardless of who becomes president. And two senior people in the conservative legal movement, speaking on the condition of anonymity to discuss a sensitive issue, said they think it’s unlikely that Thomas or Alito would step down even if Trump wins a second term.
Davis said he would advise Trump against releasing a list of prospective Supreme Court nominees because it would probably become “political fodder” for Democrats before Election Day. Others said there is little reason for Trump to do so.
“In 2016, he needed a list to persuade conservatives that he was okay,” said Josh Blackman, a professor of law at South Texas University. “He just doesn’t need that now. People believe him based on his record from the first term.”
Davis said Trump views his judicial appointments as his most important legacy and wants to build on that. He said Trump wants picks who are “bolder and more fearless” than his first-term judicial nominees, who Davis described as sometimes reining in their rulings to avoid “blowback from left-wing media and groups.”
Among the names Davis has praised publicly are 5th Circuit Court of Appeals Judge Kyle Duncan, who said the Supreme Court’s 2015 ruling legalizing same-sex marriage “imperils civic peace,” and U.S. District Judge Aileen M. Cannon, who dismissed the classified documents criminal case against Trump in Florida.
Legal observers, including Collins and Blackman, said they would expect Trump to look to the conservative 5th Circuit Court of Appeals, which has consistently staked out positions to the right of the Supreme Court, as a source of potential high court nominees. In addition to Duncan, they pointed to Judges James Ho and Andy Oldham.
Other names floated by the conservative Judicial Action Group included Judge Gregory G. Katsas, a Trump appointee to the powerful D.C. Circuit Court of Appeals; Lawrence VanDyke from the 9th Circuit Court of Appeals; and Kristen Waggoner, president of Alliance Defending Freedom, a legal organization that focuses on religious freedom, antiabortion and anti-trans issues.
Legal groups and advocates who are closer to Democrats pointed to Solicitor General Elizabeth B. Prelogar, former associate attorney general Vanita Gupta and California Supreme Court Justice Leondra Kruger as possible high court picks. Some also said Harris seems likely to push for changes at the court long demanded by transparency advocates.
Harris has said she supports Biden’s proposal to create an enforceable ethics code for the Supreme Court and 18-year term limits for justices. One of her top aides, Brian Fallon, founded Demand Justice, a progressive legal advocacy group that pushes for Supreme Court overhauls.
“There is a clear crisis of confidence facing the Supreme Court as its fairness has been called into question after numerous ethics scandals and decision after decision overturning long-standing precedent,” Harris said in a statement after Biden unveiled his plan over the summer. “These popular reforms will help to restore confidence in the Court, strengthen our democracy, and ensure no one is above the law.”
See also:
Chemerinsky: Elections matter, from composition of federal bench to our highest court
Mike Davis trolls the left online. He could also help Trump pick MAGA judges
Conservative faction pushes judge nominees who are ‘even more bold and more conservative’
Beth Reinhard, Marianne Levine and Tyler Pager contributed to this report.
