Second Trump Term Opens Door to Even More Conservative Judges

Donald Trump is expected to seek out a different kind of judicial nominee during his second term.

The incoming president will rely less heavily on establishment Federalist Society conservatives as he seeks judges who will rule in his favor. He appointed 234 judges in his first term, a significant achievement for Republicans, but some proved a disappointment to Trump after blocking efforts to overturn the 2020 election results.

Prospective nominees include solicitors general who’ve opposed Biden policies in court, and trial judges who’ve ruled for conservative litigants. Further remaking the judiciary will require an older and more moderate generation of Republican-appointed judges to step aside since Trump returns with less than half of the judicial vacancies than he started with in 2017.

“It’s a good time to let a younger, more bold, more fearless conservative judge take your place,” said Mike Davis, a former Senate Republican aide who now runs a conservative legal group, the Article III Project.

Bold, Fearless

Trump hasn’t shied away from criticizing judges who’ve ruled against him or his administration, and recently suggested that those critical of judges who do rule in his favor should face penalties.

Those who could be elevated include US District Judge Aileen Cannon on the South District of Florida. Trump has praised her for dismissing the 40 criminal counts against him related to his handling of classified materials after he left office.

Others include US District Judge Matthew Kacsmaryk of the Northern District of Texas, who invalidated the FDA’s 2000 approval of the abortion pill mifepristone, and Fifth Circuit Judge James Ho, who called abortion a “moral tragedy.”

“There are appointments of the president who have really become stars on the bench, and from the perspective of the people who’ll be advising and choosing, are probably held in very high regard,” said Jesse Panuccio, the Justice Department’s former acting associate attorney general under Trump and current partner at Boies Schiller Flexner.

“You would imagine that there’ll be an effort to find more appointees who are like them,” he said.

Lawyers in Republican state attorneys general offices and at smaller boutique firms like Consovoy McCarthy who’ve challenged Biden policies will top Trump’s list, said Robert Luther III, a former Trump White House lawyer who prepared judicial nominees for Senate hearings.

Former Trump White House counsel Don McGahn also noted some “up-and-comers” during a speech at a George Mason University law center event this fall. In addition to Cannon, he cited US District Judge Kathryn Mizelle. She struck down the national Covid-era mask mandate and recently ruled unconstitutional a key section of the federal law that allows whistleblowers to report wrongdoing.

Other names he floated include Trump appointee Trevor McFadden of the federal trial court in Washington, and Texas Supreme Court Justice Evan Young, Arizona Supreme Court Justice Clint Bolick, and Pennsylvania Supreme Court Justice Kevin Brobson.

Outside groups are also preparing to help if they get a call.

Hiram Sasser, First Liberty Institute executive general counsel, said the organization has worked since 2016 to compile a database with judicial opinions, writings, speeches, and other information that could inform how a potential Supreme Court appointee might rule.

Senate Check

The size of the new Republican Senate majority was unclear Wednesday, but it could be large enough that Trump won’t need to win over Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) who’ve been hesitant to support some of his prior nominees.

Republicans have already flipped Democratic-held seats in Ohio, Montana, and West Virginia, where having two Republican senators creates an easier path for Trump to fill judicial vacancies as Senate tradition requires district court nominees be approved by their home-state members.

Senate Republican Leader Mitch McConnell (R-Ky.), who made it possible for Trump to reshape the courts earlier by blocking Barack Obama’s judicial nominees, is stepping down from party leadership. Sen. John Cornyn (R-Texas), a longtime member of the Senate Judiciary Committee, has vowed to make confirming Trump’s judicial nominees a priority if elected Senate majority leader on Nov. 13.

And Sen. Chuck Grassley (R-Iowa) will exercise his seniority and take the gavel of the Judiciary Committee once again, elevating a key player in Trump’s prior makeover of the federal judiciary.

Gregg Nunziata, of the conservative group Society for the Rule of Law, said the focus shouldn’t be on whether Trump nominees are unqualified. Instead, he said there could be some “highly credentialed, very right-wing nominees who are committed to an agenda, not towards neutral judging.”

Vacancies Limited

Only 46 pre-election judicial vacancies remained for Trump by the end of October, including some with pending nominees. That’s compared to over 100 pre-election vacancies Trump inherited in 2017 due to Republican blockades on Obama nominees. The Democratic-led Senate has confirmed 213 of Joe Biden’s appointees.

Another 76 Republican-appointed judges will be retirement eligible in 2025 but haven’t announced plans to step back from the bench. Of that total, 28 are district judges in states with two Republican senators.

Trump won’t need that sign-off for appellate nominees, after the Republican-controlled Senate nixed that requirement during his first term. There are 25 circuit judges eligible for retirement next year.

David Prichard, who leads Texas’ commission on screening judicial nominees, said he anticipates they’ll start working on picks again in early 2025. While there are seven vacancies in the state at the moment, he said more could open in coming months.

He said the White House counsel for Trump will play a key role in determining which kind of judges are appointed. He’s already heard from people interested in some of the open seats.

“I have no idea if they’re even going to apply, where they shake out on the political spectrum—it depends on what the new administration looks like,” Prichard said.