President Trump is often loud and obstreperous, but not when it comes to choosing judicial nominees. On judges, there are no early morning tweet storms or rants. The president holds forth without restraint on practically every issue known to man. Judges are the lone exception.
His sister, Maryanne Trump Barry, who recently retired at 82 as a judge on the 3rd U.S. Circuit Court of Appeals, has Trump’s ear. As his aides learned, he has great respect for her: After she suggested a 3rd Circuit colleague, Thomas Hardiman, for the Supreme Court, the president considered him twice for vacancies. Hardiman eventually lost out first to Neil Gorsuch and then to Brett Kavanaugh.
But Hardiman is still a Trump favorite. Fifteen minutes after Trump announced Gorsuch was his first pick in January 2017, he phoned Hardiman. The president told him how much he liked him and hinted he’d consider him again. Hardiman would be close to a true “Trump-based nominee.” For a while, he drove a taxi. He grew up in the suburbs of Boston and went to the University of Notre Dame on a scholarship and then to law school at Georgetown. “He didn’t go to Oxford,” a Trump adviser noted. “He didn’t go to Harvard.”
After working for five years in Washington, Hardiman, now 52, turned down an offer to work in New York for a national law firm. His wife persuaded him to settle in Pittsburgh, her hometown, by arguing it would be a better place to raise children. He was nominated to the federal appeals court at age 41.
[Related: Clarence Thomas says he’ll be on Supreme Court for another 30 years]
Trump and his judicial picks are a success story. His tax cut boosted the economy, and the deregulation push limited the power of bureaucrats. But such moves come and go. Federal judges get lifetime appointments. Thus the consequences of filling every vacancy in the federal court system with a conservative judge, Trump’s brash aim, will be long-lasting. “It’s something that will live on,” Don McGahn, the White House counsel for Trump’s first two years, told the Oxford Union in April.
Much of the credit for the judicial upheaval goes to McGahn and an outside adviser, Leonard Leo of the Federalist Society. Without them and Senate Majority Leader Mitch McConnell, the Kentucky Republican who has given judges top priority, Trump could not have brought about a judicial breakthrough. Together, they created a juggernaut. McConnell’s slogan is: “Leave no vacancy behind.”
Trump’s crew is playing a short game and a long game. In the short run, they’ve filled two vacancies on the Supreme Court, creating a 5-4 conservative majority, and 41 on the 12 appeals courts. The high court takes roughly 80 cases a year. This means appeals courts are the final word on many hundreds more cases.
The White House’s profile for selecting judges is: the younger the better. The premium is on nominees in their 40s or early 50s and sometimes in their 30s. Next to aptitude and conservatism, age is the most important factor in judicial selection.
Trump won’t be picking judges forever. By choosing younger judges for the appeals courts now, he is creating a pool of experienced federal judges for later GOP presidents to consider for the Supreme Court. It’s analogous to a farm system in baseball.
The result: Republicans have a distinct advantage over Democrats that amplifies their slim majority in the Senate. And in the counsel’s office, where Pat Cipollone took over from McGahn in December, they are battle-tested in confirmation combat.
When the next Supreme Court vacancy opens up is anyone’s guess. But liberal Supreme Court Justice Ruth Bader Ginsburg is 86 and has suffered from cancer and broken ribs. Should her seat become vacant, you only have to look at the public list of 25 federal and state judges and Sen. Mike Lee, R-Utah, from which the president has promised to pick new justices.
There would be pressure on Trump to pick a woman. And five women from the Trump list are already being discussed, evaluated, and ranked in conservative legal circles. Trump could expand the list with new names, but he hasn’t done that since November 2017 when five names were added, notably Kavanaugh’s.
Amy Coney Barrett, 47, of the 7th U.S. Circuit Court of Appeals, is the unofficial frontrunner. She’s talked about in the same way Kavanaugh was in the many weeks before he was nominated in 2018. He was seen as the most likely pick. Now she is.
Barrett has a huge following in the conservative legal movement. She has seven children. Two were adopted from Haiti, and another has special needs. Her Catholicism was questioned at her appeals court confirmation hearing. Sen. Dianne Feinstein, D-Calif., said it might bias her against legal abortion. “The dogma lives loudly within you, and that is a concern,” Feinstein said. More than concern, liberals such as Feinstein fear Barrett as unstoppable.
She has a special asset. Barrett was a law clerk to Justice Antonin Scalia, the conservative icon who died in 2016. She wrote an impressive article in the Notre Dame Law Review in 2017 that focused on Scalia and originalism, which says the original meaning of law should be followed. “Justice Scalia,” she wrote, “admitted that ‘in a crunch I may prove a faint-hearted originalist.’ … To the extent he was occasionally faint-hearted, however, who could blame him for being human?”
Britt Grant, 41, has had a meteoric rise. In 2015, she was appointed solicitor general of Georgia. In 2017, she became a justice on the Georgia Supreme Court. In 2018, she was confirmed as a judge on the 11th U.S. Circuit Court of Appeals. And now she’s on Trump’s list as a potential Supreme Court nominee. A Grant associate explained her rise this way: Once her exceptional smarts and legal skill became known, she was on everyone’s radar, including the White House’s.
Grant was a law clerk for Kavanaugh when he was a judge on the U.S. Circuit Court of Appeals for the District of Columbia. She never had a bad word to say about him, the associate said. During her time as solicitor general, Georgia joined the states challenging Obamacare and the Clean Power Plan. At Stanford Law School, she was president of the Federalist Society.
Allison Eid, 54, took Gorsuch’s seat on the 10th U.S. Circuit Court of Appeals when he departed for the high court. Her nomination was opposed by the liberal groups that routinely object to GOP nominees. The Denver Post was kinder, calling her one of the “qualified, talented, young conservative judges” selected by Trump.
When Eid spoke to students at the University of Chicago Law School, her alma mater, she was asked what books she’d recommend. She had been a law clerk to Justice Clarence Thomas and cited his autobiography, My Grandfather’s Son. “I just think it’s such an important book on how he came from nothing, just nothing, and how he was able to navigate his way and ended up on the Supreme Court.”
Joan Larsen, 50, also has the Scalia badge of honor: She clerked for him. And she has political skill. She was appointed to the Michigan Supreme Court in 2015, then reelected in a 60-38 landslide in 2016. On her campaign website, she wrote, “Judges should interpret the laws according to what they say, not according to what the judges wish they would say.” That’s a succinct statement of the conservative take on judges.
Diane Sykes, 61, sits on the 7th U.S. Circuit Court of Appeals. She was considered by President George W. Bush for Justice Sandra Day O’Connor’s seat on the Supreme Court when she retired in 2005. Surprisingly, she was known to Trump in 2016 when he was considering nominees to fill the vacant Scalia seat. “Diane Sykes from Wisconsin, from what everybody tells me, would be outstanding,” he said. “We need a conservative person.”
Trump wouldn’t be required to choose a woman. And the women on his list are eligible to be nominated to any seat, no matter whose it were.
The policy at the White House is that a finalist for a Supreme Court seat is automatically considered for the next vacancy. That makes Hardiman a possibility. The opinion of Trump’s sister matters at the White House, where she’s viewed as the smartest member of the Trump family.
Amul Thapar, 50, is another appeals court judge, for the 6th Circuit, whom the president has considered before. His parents were immigrants from India. He lives in Kentucky and is a favorite of McConnell. “He’s an originalist, a term associated with Justice Thomas,” Scott Jennings, a McConnell adviser, wrote. “Imagine a Supreme Court where the two leading originalists are an African-American and an Indian-American.”
Thapar is highly regarded by Kentucky Gov. Matt Bevin, too. Bevin’s chief of staff Blake Brickman told me, “There are several brilliant judges who faithfully adhere to originalism and textualism, but it is Judge Thapar’s intellect combined with friendliness, humility, and work ethic that truly sets him apart.”
He was Trump’s first appeals court nominee and handled questions by Democrats on the Senate Judiciary Committee with ease. He refused to let Sen. Sheldon Whitehouse, D-R.I., typecast him as a tool of big business. “I’ve ruled time and again when the law dictated against the corporation,” Thapar said.
The long game is tricky. Democrats and the Left reacted angrily over the nominations of Allison Jones Rushing, 37, and Andrew Oldham, 40, for appeals court vacancies. Among the youngest of Trump’s nominees, both were confirmed. They could serve on the appeals courts, Rushing on the 4th Circuit and Oldham on the 5th Circuit for decades. With that appellate experience, they could become Supreme Court nominees at a relatively young age.
Rushing, who clerked for Thomas, was an associate and partner at Williams & Connolly, a powerhouse law firm in Washington, D.C., since 2011. She was attacked over an internship at Alliance Defending Freedom, a Christian-based organization that takes on cases involving religious freedom and abortion. The media was not kind to her nomination. A Washington Post headline declared, “The Senate just confirmed a judge who interned at an anti-LGBTQ group. She’ll serve for life.” On the NBC News website, the headline said, “Trump’s newly confirmed federal judge has ties to anti-gay ‘hate group.’” The “hate group” label came from the discredited Southern Poverty Law Center. Republicans have grown immune to such attacks by leftist groups for having links to alleged hate groups. All 53 Republicans voted for her confirmation.
Oldham, a clerk for Justice Samuel Alito, worked for Greg Abbott when he was Texas attorney general and then governor. Abbott sued the Obama administration dozens of times, and Oldham was the legal architect of many of those challenges. Abbott once joked about filing so many lawsuits, “I go into the office in the morning, I sue Barack Obama, and then I go home.” Oldham, viewed as a budding “superstar” among conservatives, didn’t get a warm reception in some circles. The left-wing People for the American Way insisted Oldham’s “extreme views” were “incompatible with a lifetime position on the bench.” Those views included opposition to young “Dreamers,” whose parents brought them into this country illegally, and “undermining federal efforts to protect formerly incarcerated people from discrimination.”
Why has the Trump administration’s drive to move the federal judiciary to the right been so successful? It couldn’t have happened without what Ed Whelan, the legal scholar at the Ethics and Public Policy Center in Washington, calls “the flourishing of the conservative legal movement” over the past two decades.
The movement is a pyramid with the Federalist Society at the top, its chapters in law schools and cities, and a rapidly growing base. With more than 70,000 members, it has wrapped itself around a big idea identified with and popularized by Scalia. Broadly speaking, it comprises originalism and textualism along with constitutionalism. Here’s my interpretation: It means law and the Constitution still mean what people thought they meant when they were written, and their limits remain in place. To be clear, it’s a conservative idea.
There are a few more ingredients to the movement’s rise, according to Whelan. One is what he calls “the credentialing pipeline.” Another is the colossal political blunder by Democratic leader and former Nevada Sen. Harry Reid in 2011 to kill the filibuster for appeals court nominees. Reid merely wished to pack the U.S. Court of Appeals for the District of Columbia with liberal Democrats. And he achieved that. But it was a Pyrrhic victory as it cleared the way to confirm all the Republican nominees to all the federal appeals courts.
As far as credentialing is concerned, the first step is to become a law clerk. Conservative law professors recommended graduates to friendly judges, and the practice metastasized. The higher the judge in the pecking order, the more elite the clerkship. The next step is often a serious job in state government for ex-clerks. For example, solicitors and assistant attorneys general. They have one thing in common: membership in the Federalist Society.
In the Obama era, midterm elections took a toll on Democrats. After eight years in the minority, Republicans captured the Senate in 2014 for a 54-46 majority. Two years later, Trump defeated democratic nominee Hillary Clinton, and elections began to have consequences.
Long before Trump’s inauguration, the White House judicial operation was in full swing. There had been nothing like it before. In the George W. Bush administration, a hybrid committee had been set up to consider judicial selections. The results were politically and ideologically uneven. Under Trump, judicial selections became centralized. “The Trump White House has given the counsel’s office near absolute authority,” the New York Times noted, though not quite admiringly. “In a White House known for chaos and dysfunction, the counsel’s office, under McGahn, is generally viewed as an island of competence.” That assessment remains true in the post-McGahn era.
In examining potential nominees, the approximately 10 associate counsels know exactly what they’re looking for. It’s judges “in the mold of Justice Scalia, Thomas, and now Justice Gorsuch,” McGahn said in a 2017 speech. “The Trump vision of the judiciary can be summed up in two words: originalist and textualist.” With Scalia gone, he added, “in many ways, Justice Thomas’ recent opinions are really the driving intellectual force.”
The counsel’s office tries to identify potential nominees willing to take hard or risky cases. They’re asked the “courage” question: Have you faced paying a price or jeopardizing your career for taking a principled position in a controversial case? Kyle Duncan, 47, of Louisiana is remembered for his answer. He represented Hobby Lobby and the Little Sisters of the Poor and worked on transgender and same-sex marriage cases for the conservative side. A Senate vote on his nomination as a 5th Circuit judge faced repeated delays. He was confirmed only after meeting personally with Sen. Susan Collins, R-Maine. She’d been skeptical, but after meeting with Duncan, she voted to confirm him.
The vetting of nominees is not merely thorough. It’s grinding. Sen. Chuck Grassley, the Iowa Republican, let it be known he didn’t want nominees brought before the Judiciary Committee who had dabbled in drugs after becoming a member of the bar. This requires the “rock ‘n’ roll” question to get asked, which investigates a nominee’s private habits.
The least enjoyable task of the Trump counsel’s office is consulting Democratic senators and trying to get them to respond. Sen. Kamala Harris, D-Calif., received a call every day for a month. She never responded. It took Feinstein nine months to answer a written request. The counsel’s office spent nearly two years consulting with New Jersey Sens. Cory Booker and Bob Menendez on the nomination of Paul Matey, 48, to the 3rd Circuit. After all that, the Senate confirmed Matey without the votes of Booker or Menendez.
True success has many fathers. Ann Corkery, a leader in the conservative legal movement, says McGahn, “may well go down in history as the most consequential member of the Trump administration.” Grassley, as the Judiciary Committee chairman, was certainly an important player.
But only Trump changed the way he does business to keep the judges pipeline flowing. He altered his personality. He muzzled himself. And it worked.
Fred Barnes, a Washington Examiner senior columnist, was a founder and executive editor of the Weekly Standard.
