The oldest justices are Clarence Thomas, 75, and Samuel A. Alito Jr., 73. They could be expected to seize the moment of a Republican presidency to step aside; the pressure on them to do so would be enormous. That would give Trump the opportunity to name two more justices, on top of the three he selected during his first term — Neil M. Gorsuch, 56; Brett M. Kavanaugh, 59; and Amy Coney Barrett, 52.
Chief Justice John G. Roberts Jr. is 69. I don’t see him giving Trump the opportunity to replace him; remember, this is a chief justice who took Trump to task after the then-president denounced an “Obama judge.”
None of the liberal justices — Sonia Sotomayor, 69; Elena Kagan, 63; Ketanji Brown Jackson, 53 — is going anywhere voluntarily if Trump is elected, even if their lot with the conservative majority is rather grim. “I live in frustration,” Sotomayor said in revealing remarks to law students at the University of California at Berkeley last month.
If the thought of a more youthful conservative majority fills you with dread, it should — and this is a danger that Democrats are underemphasizing. Their party has reaped political benefits from the backlash to the court’s overruling of Roe v. Wade, and President Biden plans to make the threat to abortion rights a centerpiece of the campaign.
But Biden and other Democrats have been largely silent on the bigger stakes for the court. Much damage has already been done under the Trump-enhanced majority — an enormous expansion of gun rights, an end to affirmative action in higher education admissions, a hobbling (with more on the way) of regulatory agencies. But there’s a lot of mischief left to do, and the prospect of extending this remarkable period of conservative dominance is terrifying.
And the threat is asymmetric. Not much would change if Biden won reelection; it’s possible Sotomayor, who turns 70 this year, would retire, but the rest of the court would likely remain. A more closely divided court — or even a liberal majority — will take years, or the happenstance of unanticipated departures, to come about.
I used to say that a Thomas retirement would probably move the court to the left, for the simple reason that there weren’t many Supreme Court candidates as conservative. That’s no longer true. A victorious Trump, and his advisers, would reap the benefits of having installed scores of stalwart conservatives on the lower federal courts — and have been monitoring their performance ever since.
We don’t have to speculate wildly about who the most likely nominees might be. In September 2020, the week before the death of Justice Ruth Bader Ginsburg, Trump helpfully updated his list of potential nominees, including 10 jurists he placed on lower courts. There are also a few Trump appointees who did not make that list but might well be considered in a second Trump term.
If first-term Trump was wowed by potential nominees with glittering Ivy League résumés and good looks, second-term Trump would bring to the selection process the experience of having been disappointed by what he perceives as some of his nominees’ subsequent disloyalty and lack of courage.
So, he might fish from a different pond entirely, looking outside the federal judiciary and instead tapping Republican senators such as Utah’s Mike Lee or Missouri’s Josh Hawley. Another difference: He would likely manage the process without the guidance of the Federalist Society’s Leonard Leo, who has been on the outs with Trump. Instead, Trump’s judge-picking guide appears likely to be Mike Davis, who helped shepherd Gorsuch through the confirmation process and then served as the Senate Judiciary Committee’s hyperaggressive chief nominations counsel during the Kavanaugh nomination. Recently, he has been leading the campaign to denounce the Trump indictments as politically motivated “lawfare.”
A Trump short list seems likely to include three judges from the ultraconservative U.S. Court of Appeals for the 5th Circuit: James Ho, a former Thomas clerk; Andrew Oldham, who clerked for Alito; and Kyle Duncan, a target of student protests when he spoke at Stanford Law School. Also on the potential list: Amul Thapar of the 6th Circuit, who wrote a book last year praising Thomas; Elizabeth Branch of the 11th Circuit, who joined Ho’s boycott of hiring clerks from Yale Law School after student protests of conservative speakers there; Lawrence VanDyke, who has been a strident dissenter on the liberal-leaning 9th Circuit; and Patrick Bumatay, also of the 9th Circuit.
These are not your George W. Bush-era Republican nominees. For the most part, they would make Trump’s first-term picks look mild by comparison. That is saying something — something that should be getting more attention as the prospect of another Trump term seems ever more possible.
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