Preserving the rule of law, our Constitution, and our way of life.
In 2016, there was arguably no issue that was more important to Donald Trump’s successful presidential campaign than the fate of the U.S. Supreme Court. Due to the February 2016 death of conservative judicial icon Antonin Scalia and the remarkably successful strategy of then-Senate Majority Leader Mitch McConnell and then-Senate Judiciary Committee Chairman Chuck Grassley to sideline then-pending nominee Merrick Garland and hold Scalia’s seat vacant through November, voters were able to cast their ballots uniquely confident that the winner of the presidential election would be able to decisively shape the Court’s future trajectory. The Scalia vacancy, along with Trump’s publicly floated list of possible high court picks, helped galvanize religious and social conservative support for the heterodox Republican nominee at a time when Roe v. Wade was still on the books.
In many ways, that support has been vindicated. Trump was able to nominate and confirm three Supreme Court justices—not too bad for one term’s work. He was also able to stack the lower federal courts with over 200 judges. Many of these lower-court judges helped alter the ideological complexion of their respective courts—something I witnessed firsthand during my year clerking on the New Orleans-based U.S. Court of Appeals for the Fifth Circuit. At the level of the Supreme Court, Trump’s three nominees were instrumental in numerous major decisions: Dobbs v. Jackson Women’s Health Organization on abortion, New York State Rifle & Pistol Association, Inc. v. Bruen on gun rights, Students for Fair Admissions v. Harvard on race-based “affirmative action,” West Virginia v. EPA and Loper Bright Enterprises v. Raimondo on the administrative state, and more. Clearly, there have been reasons to celebrate.
But there are also reasons for disappointment. Justice Neil Gorsuch, the man who replaced Scalia on the high court and the overall best of Trump’s three Supreme Court nominees, has disappointed in a number of high-profile cases—chief among them the 2018 immigration case of Sessions v. Dimaya, the 2020 Title VII case of Bostock v. Clayton County, and the 2020 Indian law case of McGirt v. Oklahoma. And Justices Brett Kavanaugh and (especially) Amy Coney Barrett defect from their more conservative colleagues with far too high a degree of frequency; there are too many examples to count, but Barrett’s disappointing vote in the 2024 “J6-er” case of Fischer v. United States was particularly emblematic. Nor is the issue with Kavanaugh and Barrett merely their actual voting outcomes; oftentimes, the two justices will simply punt on questionable “standing” grounds or opt not to vote to grant writs of certiorari to hear certain “controversial” cases at all. In short, both Kavanaugh and Barrett—especially Barrett—seem to lack the courage of their convictions, and those convictions are all-too-often suspect in the first place.
It is true, on the one hand, that the three right-of-center Trump nominees currently sitting on the high court are a far cry from some older Republican presidents’ truly abysmal Supreme Court picks from decades past—liberal titans of the Court such as Justices William Brennan (brought to us by President Dwight Eisenhower), Harry Blackmun (President Richard Nixon), and David Souter (President George H.W. Bush). But on the other hand, it is also true that none of the three Trump nominees on the high court are anywhere near as principled, unshakable, and consistently excellent as Justices Clarence Thomas (a President George H.W. Bush nominee) and Samuel Alito (a President George W. Bush nominee). For all the talk of how the Trump-era judicial nominations apparatus allegedly improved so much upon previous Republican White House iterations, the results—at least at the all-important level of the Supreme Court—are decidedly mixed. At a bare minimum, there is something still to be desired.
With Donald Trump now back in the White House once again set to start stacking the federal judiciary with picks, it is time for Republicans to double down and endeavor to do better than ever before in selecting rock-ribbed constitutionalist, conservative stalwarts to serve up and down the courts. I would like to propose that those ultimately responsible for finalizing judicial selections—perhaps especially, but hardly limited to, Supreme Court picks themselves—focus on vetting for four discernible, highly important litmus tests in prospective jurists.
First, we must do the actual reading and closely research a prospective nominee’s record. After the folly that was George H.W. Bush’s selection of David Souter became obvious, many conservatives consoled themselves by clamoring, “No more Souters!” The New Hampshirite, after all, had been a “stealth nominee”—someone who lacked a compelling track record, but whom then-Granite State Governor John Sununu assured President Bush he could trust. The implication of “No more Souters!” is that Republicans won’t countenance a “stealth nominee” again because they will closely survey nominees’ records for any possible signs of weakness. But that’s not how it has gone. For instance, as I noted in a column last year, “Gorsuch’s stunning defection in the 2020 Bostock decision…was entirely predictable based upon his prior similar ruling in a 2009 Ninth Circuit case called Kastl.” If only we had done the reading! For the new Trump team, only proven, demonstrable track records of consistent excellence can suffice.
Second, the deep substantive dive into a prospective judicial nominee’s background must verify not merely consistent excellence, but a genuine commitment to full-spectrum, across-the-board conservatism. In recent decades, the “conservative legal movement” has largely been coopted by libertarian and corporatist interests that tend to overemphasize the importance of size-of-government issues at the expense of core cultural or civilizational issues such as immigration, sovereignty, life, public religion, human sexuality, and anthropology, and so forth. According to Ruth Marcus’s 2019 book, Supreme Ambition: “The emphasis on social conservatism and its associated hot-button issues ended with Scalia, [then-White House Counsel Don] McGahn said at the first meeting after the [2016] election to discuss the justice’s successor. It was now all about regulatory relief.” But President Trump’s nationalist-populist MAGA coalition is not a libertarian movement, and the judicial nominations component of the Trump White House must reflect that. To be sure, deconstructing the administrative state is important. But we need culture warriors not just on the campaign trail—we need them in black robes too.
Third, as I noted in the same column last year, “it is imperative that conservatives vet nominees closely for a willingness and eagerness to overrule bad cases and correct course as aggressively as possible.” The Trump Administration must do its best to vet for would-be jurists who will liberally vote to grant writs of certiorari to hear “difficult” cases where there may be flawed precedent hindering justice for litigants, vote alongside Justice Thomas’s fairly minimalist conception of the propriety of stare decisis (precedential weight) in constitutional and statutory interpretation, and not seek to duck and preclude thorny rulings on the back-end of the litigation process on dubious “standing” or “mootness” grounds. Trump Administration judicial picks must be men and women of stalwart conviction and spines of steel—those who know exactly what they stand for and will not in any way shy away from using all the powerful tools at their disposal to help restore the U.S. constitutional order. For the Trump-selected federal judges, it must be all hands—and all tools—on deck and ready to be wielded.
Fourth, and perhaps most controversially, the prospective judicial nominee’s private life must be closely scrutinized. Start with houses of worship: it is imperative that any Jewish would-be nominee attend a Torah-observant synagogue, and it is imperative that any Christian would-be nominee attend a Bible-believing church. There is perhaps no surer sign of a nominee’s conviction than the strength of his or her faith, and the Trump Administration ought to prioritize judicial picks who know their actions will not merely be judged in the court of public opinion but in the Heavenly Court as well. It logically follows that attendance at a rainbow flag-flying house of worship ought to be an automatic disqualifier. Second, and likely even more important, is the “spouse test”: it is absolutely indispensable that a given prospective nominee’s spouse be equally, perhaps even more, conservative than the nominee him/herself. Consider spouses such as Ginni Thomas (for Justice Clarence Thomas) and Maureen Scalia (for the late Justice Antonin Scalia). These are the kind of exceptional, God-fearing women who will always be there for their husbands and will always encourage them to do the right thing no matter what the cost. That support will be crucial for what lies ahead.
If this second Trump Administration follows this advice, it will be well on its way toward locking down a decades-long conservative majority—a genuinely conservative one, that is—on the nation’s highest court and throughout many of the nation’s most important lower courts as well. In today’s post-constitutional era of judicial supremacy unfortunately run amok, it is more important than ever that pro-rule of law jurists stack the courts from top to bottom. Such an outcome won’t merely be best for President Trump and his MAGA movement—it will be best for America as well.
The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.
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