How might conservative groups influence nominations for Supreme Court vacancies during Trump presidency?
After Donald Trump’s defeat this month of Vice President Kamala Harris in the presidential election, members of the Federalist Society once again gathered in Washington for the group’s National Lawyers Convention. The mood at the Washington Hilton from Nov. 14-16 was decidedly upbeat. (Image from Shutterstock)
Eight years ago, Republican presidential candidate Donald Trump sought to shore up his support among conservatives by releasing a list of potential U.S. Supreme Court nominees he would draw from, developed with input from the Heritage Foundation and the Federalist Society.
When the Federalist Society met at a Washington, D.C., hotel days after Trump’s surprise 2016 defeat of Democratic nominee Hillary Clinton, several federal appeals court judges who appeared on that initial list of 11 were at the conference, moderating panel discussions and otherwise making themselves visible as the seat of the late Justice Antonin Scalia, who had died in February 2016, remained open for Trump to fill.
Trump in January 2017 named then-federal appeals court Judge Neil Gorsuch, who was on an addendum to the original short list, to the seat.
Trump kept publicly updating his lists, eventually choosing Brett Kavanaugh and Amy Coney Barrett for the two additional vacancies on the high court during his first term. Trump’s nominees became the core of a strengthened conservative majority that over the next few years would overrule Roe v. Wade’s federal guarantee of abortion rights, bolster gun rights, and curb the power of federal agencies.
After Trump’s defeat this month of Vice President Kamala Harris in the presidential election, members of the Federalist Society once again gathered in Washington for the group’s National Lawyers Convention. The mood at the Washington Hilton from Nov. 14-16 was decidedly upbeat.
“If the incoming administration follows the practice of the first Trump term and continues to select outstanding judicial nominees in close coordination with Senate leadership, President Trump will easily have the greatest effect on the judiciary since [President Franklin D. Roosevelt],” Michael Fragoso, the chief counsel to outgoing Senate Minority Leader Mitch McConnell, the Kentucky Republican who shepherded Trump’s three first-term Supreme Court picks to confirmation, said at a panel on judicial selections.
Trump predicted to make ‘unpredictable appointments’
Almost immediately after the election, there was speculation about whether conservative justices such as Clarence Thomas, who is 76 and has served for more than 33 years; or Samuel Alito Jr., who is 74 and has served nearly 19 years, might be inclined to retire as soon as next year to allow the new Republican president to choose their successors.
(There were also calls on the left for liberal Justice Sonia Sotomayor, who is 70 and has served for 15 years, to step down before President Joe Biden leaves office so he could appoint a younger successor. Democratic leaders threw cold water on that idea and suggested the prospects were far from guaranteed for filling her seat in such a tight timeframe and with a closely divided Senate.)
Meanwhile, Republicans have had their own public squabbles brought about by the mere prospect of one or more high court openings.
Mike Davis, an aide to President-elect Trump, suggested on social media shortly after the election that Alito might be “gleefully packing up his chambers” after Trump’s win. That prompted a rebuke from Leonard Leo, the Federalist Society co-chairman who advised Trump on high court nominees in his first term.
“No one other than Justices Thomas and Alito knows when or if they will retire, and talking about them like meat that has reached its expiration date is unwise, uninformed and, frankly, just crass,” Leo said in a Nov. 8 public statement.
The Washington Post reported earlier this year that Trump and Leo had a falling out in 2020 and that Trump sometimes complained privately about the Federalist Society providing moderate voices in his administration and his own Supreme Court appointees seeking to appear “independent” of him.
“It’s unclear how much influence the Federalist Society will have over [the incoming president’s] judicial nominations in a second Trump administration,” David Lat, the founder of the Above the Law legal news website and the host of the Original Jurisdiction podcast, said at the same panel.
Lat noted that Trump did not provide any public lists of potential Supreme Court nominees during the 2024 campaign. “In some ways, I think he’s trying to reserve some of the discretion he might have to make some unpredictable appointments,” Lat said.
Court observers have been more than willing to suggest potential nominees whom Trump would consider, including several federal appeals court judges appointed by Trump.
Like the 2016 Federalist Society convention, this year’s event included participation by several judges whose names have appeared on such informal Supreme Court lists.
Judge Andrew S. Oldham, a 2018 Trump appointee to the New Orleans-based 5th U.S. Circuit Court of Appeals, opened the convention with a speech about the importance of judicial independence. His 5th Circuit colleague Judge Kyle Duncan, who was also confirmed in 2018 to that court, led a panel on religious liberty, parental rights and “the challenges posed by the transgender movement.”
Neomi Rao, a 2019 Trump appointee to the U.S. Court of Appeals for the District of Columbia Circuit, moderated a panel on administrative law. And Judge James C. Ho, another Trump appointee to the 5th Circuit, moderated a sometimes fiery panel on the independence of the judiciary.
Ho spoke about the originalist approach to interpreting the U.S. Constitution, warned about the effects of “academic and cultural elites” on the judiciary, and he appeared to reference a remark by President Biden in late October that some Trump supporters perceived as referring to them as “garbage.” (Biden later tried to clarify the remark.)
“If you believe in democracy, if you believe in your fellow Americans, then you should believe in originalism,” Ho said at the Federalist Society panel discussion. “By contrast, if you think that the views of half the country are garbage, then no, you’re not going to like originalism.”
Judges take speaking and moderating roles
For all the talk of the Federalist Society having diminished influence with Trump, the evidence at this year’s convention seemed to suggest otherwise.
Among the participants was D. John Sauer, a former solicitor general of Missouri and the lawyer who successfully argued Trump’s case for presidential immunity last term. Trump has announced Sauer as his pick for U.S. solicitor general. Speaking at a panel on sex, gender and the law, Sauer drew a few laughs when he said: “I’ll begin with the standard government disclaimer … even though I’m not currently a government attorney. I have been one in the past. I may be one in the future.”
Some observers have suggested that appeals court judges and other potential Trump appointees use such appearances as a form of tryout to send a message to the incoming president and his advisers.
“I don’t think there is any question you get some very prominent judges as moderators and speakers for events like these,” said John Malcolm, the vice president of the Institute for Constitutional Government at the Heritage Foundation.
Malcolm, who helped come up with Trump’s first list of potential Supreme Court nominees in 2016, noted that Ho gave a prominent lecture at Heritage last year; and Judge Amal R. Thapar, a President George W. Bush appointee to the Cincinnati-based 6th U.S. Circuit Court of Appeals and a Trump short lister in the past, gave the same lecture this year.
“You want to be around judges who are rising stars,” Malcolm said.
Josh Blackman, a professor at South Texas College of Law Houston and a frequent commentator about the Supreme Court who has attended the Federalist Society conventions for years, said the judges and other prospective high court appointees tend to be people who have identified with the conservative legal group for years, and it is only natural for them to participate as moderators or panelists.
“I don’t think there is any kind of auditioning,” Blackman said. “I think that is somewhat unfair.”
As for any decline in influence of the Federalist Society, or FedSoc for short, with the incoming president, Blackman said that was “a false narrative.”
“All the people Trump could conceivably pick for the Supreme Court are FedSoc members in good standing,” he said.
