Judges Jockey for Potential Trump Supreme Court Appointment

One federal judge started a health blog, claiming that he’s biologically roughly a decade younger than he actually is.

Another gave an interview in which he offered a new legal rationale for rejecting birthright citizenship for undocumented migrants, after he long spoke in favor of the constitutional right.

And a prominent conservative lawyer argued before the Supreme Court for a key goal within the Trump administration as the president sat nearby and looked on.

All of these are examples of the private and public actions potential Supreme Court candidates are taking ahead of any potential vacancy on the nation’s highest court. On top of the more public overtures, seen by some as auditioning, friends are quietly pushing those in Trump’s orbit for their preferred judges to be considered if a seat were to open up.

Retirement speculation, which typically comes at the end of each Supreme Court term in June, has been focused on 77-year-old Justices Clarence Thomas and 76-year-old Samuel Alito. The men, considered the two most conservative justices, haven’t publicly announced their future plans.

There’s particular interest in thoroughly vetting potential Supreme Court candidates during the second Trump administration: President Donald Trump’s three picks for the high court have regularly ruled in his favor—but not always.

The president has been particularly angry about the justices striking down one of his landmark policy priorities, sweeping international tariffs. Justices Neil Gorsuch and Amy Coney Barrett, both Trump nominees, ruled against the president in the case.

Solicitor General John Sauer and Judge Andrew Oldham of the Fifth Circuit have been discussed as potential candidates for the Supreme Court, said people familiar with those conversations, some of whom spoke on condition of anonymity as to candidly discuss the topic.

US District Judge Aileen Cannon in Florida has been backed by Mike Davis, a conservative lawyer aligned with Trump, after she dismissed criminal charges against the then-former president who was charged with retaining classified documents after leaving office. Davis declined to comment for this story.

Other names floated include Judge James Ho on the Fifth Circuit, Judges Neomi Rao and Gregory Katsas on the DC Circuit, Judge Patrick Bumatay on the Ninth Circuit, Judge Steven Menashi on the Second Circuit, and Judge Amul Thapar on the Sixth Circuit.

“The only people who would be considered, I think, would be a Trump-appointed judge, and the Trump-appointed judges are going to have their contacts in the administration,” said John Malcolm, a conservative lawyer with the group Advancing American Freedom.

The judges and the Justice Department didn’t return requests for comment.

A White House official declined to comment on speculation about hypothetical scenarios, but said Trump “will fill any judicial vacancies that arise with well-qualified nominees who love our Constitution.”

Don McGahn, who led judicial nominations as Trump’s White House counsel during the first administration, said the choice on who will be made a justice—regardless of any aggressive lobbying—will ultimately be left up to Trump. “So, despite all sorts of folks who claim real or imagined relevancy, it is only up to one person, and that is President Trump,” he said.

And Josh Blackman, a law professor at the South Texas College of Law, was doubtful that the out-of-court maneuvering would make much of a difference when it comes to the White House’s selection of a justice.

“I think at this point, the quantities are known,” Blackman said.

Trump Lawyers

Auditioning for the Supreme Court is not a new phenomenon. Trump-appointed judges are frequently accused of it, particularly as a number of the appellate appointees rule in the current administration’s favor.

“Usually this sort of thing is done quietly,” Malcolm said of the jostling for a Supreme Court seat. He said former clerks typically lead the charge in advocating for a judge to be made a justice, and said he’s seen memos written by those lawyers about why their former bosses should end up on the Supreme Court.

It’s not only judges who can be considered for the high court. Solicitors general, sometimes referred to by legal observers as the “tenth justice” due to how often they argue before the court, can be considered. Justice Elena Kagan held the role before President Barack Obama nominated her for the high court in 2010.

In April, Trump traveled to the Supreme Court for the first time to attend the birthright citizenship arguments, and left after he watched Sauer argue on behalf of his administration in the case. How that ruling plays out could have an impact on whether Sauer would land a future vacancy on the court.

While some Trump allies have said the president will choose a different and more bold kind of judge during his second term, many of his picks have similar backgrounds to those he nominated during his first time in office.

Trump has also been turning to his private legal teams to fill the courts. Three of his second-term federal appellate picks have served as his personal attorney: Emil Bove, Justin Smith, and Matthew Schwartz.

And Sauer’s decision to represent Trump after the Jan. 6, 2021 riots at the US Capitol, when many lawyers were distancing themselves from the former president, could give him an edge when it comes to any Supreme Court selection.

But the federal judges that Trump has nominated recently have been similar to those he appointed during his first term, said Lee Holmes, a former chief counsel to Sen. Lindsey Graham (R-S.C.) and current attorney with Maynard Nexsen.

“While the President has his frustrations with the Federalist Society,” Holmes said, Trump’s picks share a commonality: “Conservatives with outstanding credentials.”

Public Auditions

Some say judges accused of auditioning are just doing their jobs as they would without any opportunity for a promotion.

But Trump’s return to the White House has created a new opportunity for judges that he appointed during his first term. After Trump lost reelection in 2020, many of the picks started hearing litigation against President Joe Biden’s administration, giving them the opportunity to bolster their conservative credentials.

On the day of Trump’s second inauguration, Thapar of the Sixth Circuit launched a Substack about health and wellness. He wrote that he wanted to spread the word on how he turned his life around, dedicating himself to regular workouts and improving his sleep and diet.

“Most of my bloodwork is now in the ideal range for a 43 year old!” wrote Thapar, who was born in 1969. “As a result, I reduced my biological age to 43 (your chronological age really doesn’t matter; what matters is your biological age).”

Some of the people familiar with conversations around candidates said it read as an attempt to audition for the Supreme Court. Legal commentator David Lat didn’t rule out the possibility in his own coverage of Thapar’s blog. “Perhaps a Justice Thapar could bring back the exercise classes that the late Justice Sandra Day O’Connor used to organize” wrote Lat in a Bloomberg Law opinion piece.

Thapar didn’t return a request for comment.

Soon after Trump’s reelection, Ho of the Fifth Circuit gave an interview with Blackman in which he offered a new legal rationale to exempt the children of undocumented migrants from birthright citizenship. Ho years earlier wrote a law review article in which he defended the legality of birthright citizenship—which Trump is now trying to eliminate at the US Supreme Court.

Ho didn’t return a request for comment.

But in a Texas A&M law review piece published in March, Ho signaled that sitting on the Supreme Court could be difficult for him, as his wife is a prominent litigator with the international law firm Gibson Dunn and it could lead to recusal issues for the whole firm.

In an interview with Bloomberg Law, Blackman said Ho wasn’t auditioning, and that the question came up because Ho had recently written an opinion about the legal implications on the declaration of an “invasion” of undocumented immigrants at the southern border by Texas Gov. Greg Abbott (R).

Ho also has his public advocates. “If there is a high court vacancy, the single best pick would be the man for whom I once clerked: James C. Ho of the U.S. Court of Appeals for the Fifth Circuit,” wrote conservative commentator Josh Hammer in an April Newsweek op-ed.

Hammer also took aim at Oldham in the piece, arguing that the judge—considered a prominent conservative on arguably the most right-leaning federal appeals court in the country—isn’t conservative enough. That’s in part because Oldham in 2010 signed a letter of support for his former Harvard Law professor, Sen. Elizabeth Warren (D-Mass.), when she was up to lead the Consumer Financial Protection Bureau.

In an interview, Hammer said he also took issue with some of Oldham’s rulings, including one that allowed the abortion medication mifepristone to remain on the market. He said that even though the ruling was on procedural grounds, it’s concerning that “there’s a tendency in the record to not take the boldest position.”

It’s rare for criticism of potential Supreme Court candidates to take place publicly before there’s a vacancy.

It’s also likely that there won’t be a Supreme Court vacancy, and the proxy war will be for naught. Multiple media reports have said that Alito won’t retire at the end of this session. And if Thomas remains on the court for two more years, he can become the longest-ever serving US justice.

Hammer said his job is to be a commentator and give his opinion about judges, and said he’s not part of any private conversations taking place to promote candidates like Ho to the top of a contender list.

Still, there can be a risk in being too aggressive in undercutting other nominees.

Malcolm said that in lobbying with the White House and Trump allies about who should become a justice, “sometimes those whispers are going to be not only in favor of somebody they like, but also why that person is better than somebody else who might be under consideration.”

“And sometimes, I assume, those kinds of discussions get nasty enough that people cancel each other out,” Malcolm said.