From champagne to speeches, would-be Trump Supreme Court justices draw conservative buzz
By John Fritze, CNN
(CNN) — Donald Trump’s return to power is creating a reality television-like competition for attention among a group of black-robed candidates – some of whom may hope to one day wind up on the Supreme Court.
Several possible contenders for one of the coveted nine seats on the high court have been burnishing their conservative bona fides in public statements, combative court opinions and public champagne toasts – an effort that could prove useful if an opening materializes during Trump’s second term in office.
For a president-elect who has named provocative “fighters” to Cabinet positions, appearing as an outspoken and punchy jurist is likely smart strategy, even though some of Trump’s critics see it as an “unseemly” auditioning that breaks with tradition, especially without an actual vacancy to fill.
US Circuit Judge Andrew Oldham drew attention recently for condemning “political” prosecutions days after Trump’s reelection. Oldham did not mention Trump by name – nor special counsel Jack Smith’s criminal cases against him – but the context of the remarks was hard to miss.
“One thing that is beyond reasonable debate is that people should not be prosecuted on the basis of their politics or on their status as a political candidate,” Oldham declared at a convention of lawyers in Washington, DC, organized by the conservative Federalist Society.
Oldham, who Trump named to the 5th US Circuit Court of Appeals in 2018, slammed “prosecutions lodged in the middle of political campaigns” and told the conference that opposing such efforts demanded “rock-ribbed defense.”
Early jockeying underscores the potential significance of a second Trump term on the federal judiciary, and the Supreme Court specifically. If Trump is able to name one or two younger justices in a second term, it would lock in for decades the conservative supermajority he built in his first term.
“Some of the judges Trump put on the courts of appeals … have been openly campaigning for the Supreme Court,” said Jake Faleschini, justice program director at the liberal Alliance for Justice.
“This is not the sort of thing we’ve seen consistently in the past,” Faleschini said, noting that past potential candidates sought to limit public stances to avoid giving critics something to use against them at confirmation hearings. “We’re in a different world.”
At the same Federalist Society convention where Oldham spoke earlier this month, US Circuit Judge Neomi Rao raised a glass of champagne along with others on her panel to celebrate the Supreme Court’s rulings earlier this year weakening the power of federal agencies.
Days earlier, US Circuit Judge James Ho – another Trump 5th Circuit appointee – appeared to qualify his position defending birthright citizenship – a subtle turn that brought him more in line with Trump’s own views on that issue. In an interview with a conservative law professor, Ho said the citizenship principle doesn’t apply in cases of “war” or “invasion.”
“Birthright citizenship obviously doesn’t apply in case of war or invasion,” Ho told the professor. “No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship.”
Ho – who was an outspoken jurist long before Trump’s reelection – framed his remarks as consistent with his past positions. In an opinion this summer dealing with Texas’ construction of a floating barrier on the Rio Grande, Ho wrote that Texas should have prevailed in the case because the state was repelling an “invasion” of migrants.
“A sovereign isn’t a sovereign if it can’t defend itself against invasion,” he wrote.
Ho, Oldham and Rao are all in their late 40s to early 50s, meaning they could serve as justices for decades if chosen and confirmed.
After naming three justices to the Supreme Court – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – it’s not clear if Trump will have more opportunities to shape the bench in a second term.
Retirement speculation has centered on two of the court’s stalwart and veteran conservatives, Justice Clarence Thomas, 76, and Justice Samuel Alito, 74. People close to Alito recently told the Wall Street Journal he has no plans to step down.
Multiple sources told CNN that Trump’s transition is not actively vetting candidates for the Supreme Court, though they stressed that could change quickly.
CNN has reached out to Oldham, Ho and Thapar for comment. A source close to Ho pushed back on the notion that the judge is gunning for a Supreme Court nomination, telling CNN that the judge may not want to move his family to the nation’s capital.
Culture war judges
If Trump’s Cabinet picks are any indication, he may be looking for judicial candidates who are strident conservatives – more in line with Thomas and Alito than his own first-term nominees.
Trump is “going to be looking for what I think some people call fearless judges – those who are not afraid to stake out their position and defend it and in theory take the criticism,” said John P. Collins Jr., a professor at the George Washington University Law School.
“Trump’s picks during his first term all fit the mold of establishment legal conservatives,” Collins said. “Now, they’re looking for more culture war-type conservatives.”
Hiram Sasser, executive general counsel at the conservative First Liberty Institute, pushed back on the notion that the judges themselves are seeking to gain Trump’s attention. Instead, he said, influential judicial conservatives are likely being asked to appear more on podcasts and in forums rather than seeking the attention themselves.
“People want to hear from the most productive and influential voices in all professions,” Sasser said. “I predict that based on past statements from President Trump, he is looking for judicial courage – someone who applies the law and even though the New York Times comes after them, that judge gets up the next morning and does it again, and again, and again. I doubt he or his team are looking for a schmoozer.”
If the judges are engaged in a hand-raising effort, then there are signs it has paid off in the past.
Then-Judge Gorsuch drew considerable attention in 2016 by writing a concurring opinion to his own majority opinion on the 10th Circuit in which he eviscerated the notion of giving federal agencies deference to approve regulations in the face of vague laws. The view aligned neatly with Trump’s own position on limiting the power and size of government.
“There’s an elephant in the room with us today,” Gorsuch wrote of so-called Chevron deference months before the 2016 election. “Maybe the time has come to face the behemoth.”
The Supreme Court ultimately overturned Chevron deference – with Gorsuch in the majority – in a blockbuster decision earlier this year, leading to the Federalist Society toast.
Another jurist often mentioned as a possible Supreme Court candidate, US Circuit Judge Amul Thapar, recently used a Heritage Foundation event to rail against law schools for not teaching originalism, a legal doctrine favored by the conservative justices to decide everything from abortion to gun cases.
Thapar, who Trump named to the 6th US Circuit Court of Appeals in 2017, called American law schools “amiss” and accused them of “malpractice” for not more forcefully embracing the conservative doctrine, which relies on defining the words of the Constitution as the framers would have understood them. Thapar, 55, said that universities that failed on that front should face consequences in their funding.
“If that is not their priority, then taxpayers should take note and demand change,” Thapar said. “Every one of us, including the taxpayers, should be demanding that law schools hire professors who are committed to educating people about what the Constitution means, not what the professors wish it meant.”
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