Trump's second term opens the door for even more conservative judges

Donald Trump is expected to seek another judicial nominee in his second term.

The new president will rely less heavily on conservatives in the established Federalist Society as he looks for judges to rule in his favor. He appointed 234 justices in his first term, a significant victory for Republicans, but some proved a disappointment for Trump after they blocked attempts to overturn the 2020 election results.

Potential nominees include attorneys general who have spoken out in court against Biden's policies and trial judges who have ruled in favor of conservative litigants. Further reshaping of the judiciary will require the retirement of an older and more moderate generation of Republican-appointed judges, as Trump returns with fewer than half the judicial vacancies than he began in 2017.

“It's a good time to let a younger, bolder and 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.

Brave, fearless

Trump has not shied away from criticizing judges who have ruled against him or his administration, and recently suggested that those critical of judges who rule in his favor face penalties.

Among those who could be elevated is U.S. District Judge Aileen Cannon for the Southern District of Florida. Trump has praised her for dismissing the 40 criminal charges filed against him related to his handling of classified materials after he left office.

The others include U.S. District Judge Matthew Kacsmaryk of the Northern District of Texas, who invalidated the FDA's approval of the abortion pill mifepristone in 2000, and Fifth Circuit Judge James Ho, who called abortion a “moral tragedy.”

“There are presidential appointees who have really become stars on the bench and are probably very highly regarded from the perspective of the people who advise and elect,” said Jesse Panuccio, the former acting Justice Department staff attorney general under Trump and current Partner at Boies Schiller Flexner.

“You can imagine that there will be an effort to find more candidates who are similar to them,” he said.

Lawyers at Republican attorneys general's offices and at smaller boutique firms like Consovoy McCarthy that have challenged Biden's policies will be at the top of Trump's list, said Robert Luther III, a former Trump White House lawyer who is preparing nominees for Senate hearings has.

Don McGahn, a former Trump White House adviser, also mentioned some “up-and-comers” during a speech at a George Mason University Law Center event in the fall. In addition to Cannon, he cited U.S. District Judge Kathryn Mizelle. She has repealed the national Covid-era mask mandate and recently declared unconstitutional a key section of federal law allowing whistleblowers to report misconduct.

Other names he announced include Trump appointee Trevor McFadden of the Washington federal court, as well as 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, executive general counsel of the First Liberty Institute, said the organization has been working since 2016 to compile a database of judicial opinions, writings, speeches and other information that could shed light on how a potential Supreme Court nominee 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 have to win over Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), who have so far hesitated to support them some of his previous nominees.

Republicans have already flipped Democratic seats in Ohio, Montana and West Virginia, where the presence of two Republican senators provides an easier way for Trump to fill judicial vacancies because Senate tradition requires district court nominees to be chosen by the members of their home state.

Senate Republican leader Mitch McConnell (R-Ky.), who earlier enabled Trump to reshape the courts 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 he is elected Senate majority leader on Nov. 13.

And Sen. Chuck Grassley (R-Iowa) will show his seniority and pick up the Judiciary Committee gavel again, highlighting a key player in Trump's previous overhaul of the federal judiciary.

Gregg Nunziata of the conservative group Society for the Rule of Law said the focus should not be on whether Trump nominees are unqualified. Instead, he said there could be some “highly respected, very right-wing candidates who are committed to an agenda and not committed to neutral assessment.”

Limited job opportunities

By the end of October, Trump had only 46 judicial vacancies before the election, including some with pending nominees. By comparison, in 2017, Trump took over 100 vacancies before the election because Republicans blocked Obama nominees. The Democratic-led Senate has confirmed 213 of Joe Biden's appointees.

Another 76 Republican-appointed judges will be eligible to retire in 2025 but have not announced plans to step down. Of those, 28 are district judges in states with two Republican senators.

Trump will not require that approval for appointees after the Republican-controlled Senate eliminated that requirement in his first term. There are 25 district judges eligible to retire next year.

David Prichard, who leads the Texas Commission to Review Judicial Candidates, said he expects it to begin selection again in early 2025. While there are currently seven open positions in the state, he said more positions could become available in the coming months.

He said Trump's White House counsel will play a key role in deciding what kind of judges are appointed. He has already heard from people interested in some of the available spots.

“I have no idea if they will even apply, where they are on the political spectrum – it depends on what the new administration looks like,” Prichard said.