What kind of judges would Trump nominate in a second term? [Corrected version]

Probably ones not as good as in his first term, but only at the margin

In listing the positive accomplishments of Donald Trump’s first term, many conservatives put his key judicial appointments, a good number of whom were recommended by Federalist Society leaders, near the top of the list. I do.

Unfortunately, Trump apparently does not. For months, I’ve been reading that Trump is disillusioned with key judicial nominees, angry at the Federalist Society, and no longer speaking to Leonard Leo, the activist whose recommendations Trump largely followed in selecting judges during his first term. I wrote about this development here.

Now, the Washington Post has chimed in with this piece called (in the paper edition) “A changed Trump on approach to judiciary — Frayed Alliances, anger at courts could upend any 2nd-term nominations.” Unfortunately, the Post’s report is a confused mishmash of anti-Trump talking points with plenty of gossip thrown in.

Importantly, the Post fails to distinguish between how Trump might fill judicial posts and how he might fill lawyering positions in his administration. Thus, we read:

The former president will be looking for appointees “who are talented and strong and — here’s the key ingredient — truly committed to helping him accomplish his agenda,” said Mark Paoletta, former general counsel of the Office of Management and Budget under Trump.

Too many people in the last administration, Paoletta said, “actually disagreed with the president and tried to thwart him.” He noted: “You don’t want fair-weather appointees in your administration,” and, “your lawyers should be as aggressive as possible to help the president carry out his agenda.”

(Emphasis added)

Trump should be looking for appointees to his administration, including lawyers, who are truly committed to helping him accomplish his agenda. All presidents should be.

But Mark didn’t say Trump will look for judges who are committed to helping him with his agenda. Indeed, such a statement would border on the nonsensical. Judges don’t help accomplish policy agendas. They can’t. They can only decide cases that come before them.

A judge might favor lower taxes, less immigration, or a cut-off of aid to Ukraine. But it’s highly unlikely that this judge will ever be in a position to make rulings that advance these agenda items.

What judges can do in the cases that come before them is follow a particular approach to judging. By and large, the judges Trump nominated in his first term did so using approaches favored by conservatives — e.g. originalism, textualism, and respect for separation of powers.

Naturally, the Washington Post and Ruth Marcus, its attack dog on such matters, weren’t happy. However, there’s no formal difference between Trump nominating judges who follow approaches favored by conservatives and Democratic presidents like Obama and Biden nominating judges who follow liberal approaches. From a neutral perspective, there’s nothing amiss in either case.

The real question about a second Trump term, therefore, is whether Trump will continue to nominate judges who follow conservative approaches to judging or whether, instead, he will nominate judges who place loyalty to Trump ahead of fealty to the law.

As to the first question, it’s troubling (if true) that Trump won’t rely on Federalist Society leaders to identify potential nominees. Such vetting is the best way I know of to maximize the likelihood of selecting judges who will adhere to conservative approaches to judging.

However, excluding FedSoc leaders from the selection process doesn’t entail a failure to select high quality judges who follow conservative approaches. It just reduces the likelihood of selecting them.

According to the Post, Leonard Leo believes Trump would continue to nominate conservative judges who interpret the Constitution as it was written because he does not have much of a choice. “I can’t see a situation where Donald Trump doesn’t pick originalist judges if he gets a second term, because the Federalist Society has won the philosophical debate,” says Leo.

This overstates the case, I think. The Federalist Society may have won the philosophical debate, but that doesn’t mean Trump couldn’t find non-originalist judges or judges who don’t understand originalism to nominate.

The real danger is that without the right guidance, Trump will stumble into the wrong kind of judges, the way some previous Republican presidents did. Thus, it would be better if Trump still trusted FedSoc leaders. However, his lack of trust will likely be felt only at the margin. On the other hand, even one mistake at the Supreme Court level could have dire consequences for decades.

The second question is whether Trump will nominate judges who place loyalty to him above fealty to the law. The question is fair because I detect in Trump no great attachment to the rule of law. I believe he wants judges who, if the choice is between a decision that adheres to the law and one that favors his interests, will pick the latter alternative. It’s true that most of his nominees won’t often (if ever) have to make that choice, but his Supreme Court nominees, if any, will likely have to on occasion.

Frankly, I suspect that most presidents feel the same way Trump does about this. But most presidents don’t believe they’ve been badly burned by the law in the past, and therefore are not preoccupied with the question of a potential nominee’s loyalty. Trump has been, and is being, burned, so he may well be preoccupied with personal loyalty to a greater degree in a second term than in the first.

But even if Trump wants to nominate judges whose loyalty is to him, not the law, it won’t be easy to accomplish this. There are several important obstacles.

First, how does he find such nominees? There are few lawyers around who express disdain for the rule of law.

Trump’s advisers can comb through the decisions of sitting judges and eliminate those who seem to have placed fealty to the law ahead of reaching a “good” result. Nearly all experienced judges will have reached the “wrong” result on occasion. Instead of nominating these judges, Trump could nominate less known figures whom they hope would not be sticklers for legal niceties.

This approach would reduce the quality of the bench. However, there’s no reason to believe that, once on the bench, these “stealth” nominees would be more loyal to Trump than to the law.

In fact, there’s little reason to believe that even potential nominees who talk a great game on loyalty to Trump would judge accordingly once in office. Judges have life tenure. Once confirmed, they can do as they please. Few would be pleased to become instruments Trump’s personal interests.

Finally, there’s the difficulty of Senate confirmation. Even if Republicans take control of the Senate next year, their margin will likely be very slim. Moreover, Lisa Murkowski and Susan Collins would be part of any GOP majority. And there are sometimes unexpected defections in tough confirmation fights (e.g. Tim Scott during the Ryan Bounds proceedings).

Thus, it will difficult enough to confirm the kinds of principled conservatives Trump nominated during his first term. Confirming nominees who show signs of placing loyalty to Trump ahead of fealty to the law might be nearly impossible, as it should be.

I don’t want to come across as sanguine about Trump’s judicial nominees in a second term. We should be able to rely on presidents to do the right thing, rather than relying on outside constraints to prevent them from doing the wrong one. In Trump’s case, we may have to rely on outside constraints.

If so, that’s at least one strike, and maybe two, against Trump’s candidacy.. But it’s important to acknowledge the possibility, and I would say likelihood, that these constraints will largely be effective before we call strike three.

NOTE: I have changed this post from the original version to reflect the fact that the Federalist Society itself did not make any recommendations for judges during the Trump administration (or at any other time).