On Wednesday, President Trump added 20 additional names to his list of potential Supreme Court nominees, bringing to 44 the total list of individuals that Trump will consider for the Supreme Court, should he win another term and a vacancy occur.
The 2016 list:
- Candidate Donald Trump released the original list of eleven potential Supreme Court nominees in May 2016 to convince Trump-skeptical conservatives to support his campaign. A few months later, Trump added ten more names to the list, including Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit, bringing the number of potential candidates for the Court to 21.
- The move paid off. Exit polls from 2016 showed that one-in-five Americans who voted in the presidential election said that the primary reason for their vote was the Supreme Court; of those, 56% voted for Donald Trump.
Supreme Court nominations and the expansion of the list:
- On January 31, 2017, shortly after taking office, President Trump chose Judge Gorsuch from the list to fill the Supreme Court vacancy created by the passing of Justice Antonin Scalia the previous year.
- In November 2017, President Trump added five more names to his list, including Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia.
- On July 9, 2018, President Trump chose Judge Brett Kavanaugh from the list to fill the Supreme Court vacancy created by the retirement of Justice Anthony Kennedy.
Why the list matters:
- Article II of the U.S. Constitution grants the president the power to nominate federal judges.
- Once confirmed by the Senate, federal judges serve for life. This insulates them from politics, freeing them to decide cases on the basis of the Constitution and the law as written, rather than on the basis of the views of the appointing authority or the public at large.
- Theoretically, this circumscribed role applies to all judges, whether appointed by a Democratic president or a Republican one. Unfortunately, however, progressives often look to the courts to enact social policy and, therefore, they frequently oppose the nomination and confirmation of judges without a track record of political support for their favorite causes.
- The 44 men and women on President Trump’s list of potential nominees all understand that the constitutional role of the federal judiciary is a limited one — requiring a judge to interpret and apply the law as written by the people’s representatives, not as the judge (or various political constituencies) might prefer.
The new additions include some interesting possibilities:
- Judge James Ho of the United States Court of Appeals for the Fifth Circuit. A former partner at Gibson, Dunn & Crutcher, Ho served as the Solicitor General of Texas and was a law clerk to Justice Clarence Thomas.
- Justice Carlos Muñiz of the Supreme Court of Florida. A former General Counsel for the U.S. Department of Education, Muñiz also served in various positions in the Florida State government. He was a law clerk to Judge José A. Cabranes of the United States Court of Appeals for the Second Circuit.
- Paul Clement. A partner with Kirkland & Ellis, Clement previously served as Solicitor General of the United States and has argued over 100 cases before the Supreme Court. He was a law clerk to the late Justice Antonin Scalia.
- Noel Francisco. Like Clement, Francisco served as Solicitor General, arguing cases before the high Court. Francisco is a partner with Jones Day and was a law clerk to the late Justice Antonin Scalia.
Notably absent from the new list:
- Judge Neomi Rao of the U.S. Court of Appeals for the District of Columbia. The former administrator of the Office of Information and Regulatory Affairs, Rao is also a former professor of structural constitutional law, administrative law, and statutory interpretation at the Antonin Scalia Law School at George Mason University. She clerked for Justice Clarence Thomas.
Leading contenders from the earlier version of the list, include:
- Judge Amul Thapar of the United States Court of Appeals for the 6th Circuit. Thapar is a former United States District Judge and the former United States Attorney for the Eastern District of Kentucky. He was a clerk to Judge Nathaniel R. Jones of the United States Court of Appeals for the Sixth Circuit.
- Judge Amy Coney Barrett of the United States Court of Appeals for the 7th Circuit. Barrett, who clerked for Justice Antonin Scalia, is a former Professor of Law at the Notre Dame Law School.
The full list:
- The full list of 44 potential nominees includes a diverse group of 24 federal appeals court judges, four federal trial court judges, six state court judges, five current or former Executive Branch officials, four United States Senators (Tom Cotton of Arkansas, Ted Cruz of Texas, Josh Hawley of Missouri, and Mike Lee of Utah) and one state attorney general.
- Although some commentators have criticized the inclusion on the list of non-judges, history is filled with examples of presidents nominating justices without prior judicial service. Chief Justice Rehnquist and Justice Byron White, for example, both joined the Court directly from the Justice Department.