Trump Must Pick Judges Who Have Publicly Demonstrated Their Courage

One of the defining legacies of President Trump’s first term is the judiciary. He appointed three Supreme Court justices, fifty-four judges to the courts of appeals, and 174 judges to the federal district courts. It is unlikely that Trump will top those numbers in his second term. There are fewer pending vacancies, and fewer judges will be eligible to step down. For these reasons and more, Trump must make every lifetime appointment count. Trump’s first batch of picks checked all conventional boxes: they were smart, well-credentialed, and impactful. Trump’s three appointees to the Supreme Court have already joined landmark decisions concerning abortion, the Second Amendment, and religious liberty. Moreover, a recent study demonstrates that the Trump lower court nominees have dwarfed the influence of Obama judges, and I suspect there will be an even more significant disparity for Biden judges. 

Yet, not all Trump judges are made from the same stuff. While they may share similar judicial philosophy–it is easy enough to profess fidelity to originalism at a confirmation hearing–they do not all put it to the same use. In generations past, scholars and critics charged that some judges were “judicial activists” while others engaged in “judicial restraint.” These terms are largely meaningless and fail to account for how judges rule in many cases. Instead, a different metric is a far greater predictor of behavior on the bench: judicial courage. Will a judge’s decisions be affected, in any way, by how legal elites will respond? Stated differently, does the judge have a fear of being booed? Any judicial nominee would deny having such a fragile disposition. But there is only one way to prove it: a record of publicly demonstrating courage in the face of criticism by legal elites. If they haven’t done it before becoming a judge, they will not do it after becoming a judge. Courage is like a muscle: it must be exercised. Every future Trump nominee should be able to show such steadfastness by word and deed.

You don’t have to take my word that some Trump judges lack courage: the two most conservative members of the Court, Justices Clarence Thomas and Samuel Alito, routinely complain that their new colleagues lack fortitude. In a 2022 article, I chronicled five such cases. First, in a 2018 ruling in favor of Planned Parenthood, Justice Thomas implied that Justice Brett Kavanaugh “consult[ed] popularity.” Second, in a 2019 administrative law case, Justice Gorsuch charged that Justice Kavanaugh lacked “nerve.” Third, in a 2020 post-election case, Justice Thomas wrote that Justices Kavanaugh and Amy Coney Barrett’s “refusal” to review an important issue was “inexplicable,” “befuddling,” and “baffling.”  Fourth, in a 2021 religious liberty case, Justice Gorsuch charged that Justices Kavanaugh and Barrett could not “muster[] the fortitude” to overrule a precedent. Fifth, in 2021, the Court ruled in favor of a deceased prisoner’s family who alleged police brutality. Justice Alito berated Justices Kavanaugh and Barrett, who were “unwilling to . . . bear[] the criticism that” denying the appeal “would inevitably elicit.”

Since 2022, these criticisms have continued. In another abortion case, Justice Alito wrote that Justices Kavanaugh and Barrett have “simply lost the will to decide the easy but emotional and highly politicized question.” Alito added that his colleagues “do[] not want to tackle this case” and instead “duck[].”  Just last month, the Court declined to review a school’s policy that encouraged students to transition their gender without parental consent. Justice Alito faulted Justices Gorsuch and Barrett for “succumbing to the temptation to . . . avoid[] some particularly contentious constitutional questions.” 

These cases are not outliers. And none of these decisions should be surprising. I have chronicled the records of the three Trump appointees at great length before their elevation to the Supreme Court. Justice Gorsuch’s rulings in cases concerning gay rights and Indians were presaged by his lower court decisions. Justice Kavanaugh has long tempered his conservative jurisprudence out of concern for how his decisions would be seen. And Justice Barrett was an academic who did not publish on controversial matters and never took a public position that would place her out of the mainstream. Who these nominees were before the Supreme Court is who they are on the Supreme Court. Is it any wonder that progressives now realize the gifts they got with the Trump nominees, Justice Barrett in particular? A recent column in USA Today implored that “Liberals owe Justice Barrett an apology.” And Washington Post columnist Ruth Marcus celebrated Barrett as a “pleasant surprise.” We can do better.

How can judicial courage be identified? Credentials do not count for much. For example, President Biden’s White House Counsel clerked for Justice Samuel Alito. Moreover, it is not enough for supposedly reliable people to vouch that a judge will be “solid.” That strategy has failed so many times before. It is reckless to keep trying it. The response to “he’s solid” should be “prove it.” And the time horizon for this strict scrutiny should begin before a candidate aspires to become a judge, or before a judge aspires to be elevated to the Supreme Court. It is easy enough for a person on the precipice of an appointment to act in a short-term way in hopes of getting noticed. But these last-ditch auditions are too little, too late. Indeed, if they are the type of people who pose to get a job, they will be no different on the bench. They will simply seek someone else’s admiration. A person’s worth is measured when no one is looking. These records should stretch far back.

Here are the resume items President Trump should demand when selecting judges. 

First, has the candidate knowingly put himself in a position where he would likely be subject to public criticism by legal elites? By legal elites, I do not mean simply those on the political left. There are plenty of patrician Republican lawyers who deem much of the modern conservative legal movement as simply beyond the pale. I don’t think the candidate needs to have been publicly protested, although that could be a plus. Rather, the White House should parse whether the candidate took legal positions likely to be condemned by legal elites. The most impressive work will be speeches, articles, and other works the candidate personally signed. There is no mistaking the author took personal responsibility. Also important is whether the person chose to work at a public interest group or in certain government positions that engage in strategic litigation. These attorneys sacrifice the hefty paycheck to pursue important causes for which they take accountability. To be sure, working for a big law firm is not categorically disqualifying, but partners and associates should still devote their time to meaningful pro bono work.

Second, if the nominee has been publicly criticized, how did he respond? Did he wilt under the pressure and refuse to retake controversial positions? Or did he fight back, and continue undertaking the conduct that gave rise to the criticism? It is easy enough for a person, perhaps inadvertently, to stumble into a hornet’s nest. But what happens afterwards? Does he abandon those principles, and lay low? Or does he defend his convictions?

Third, we should judge a judge by the company he keeps, or in Latin, noscitur a sociis. A recent book demonstrates that judges are likely “to follow the lead of the elite social networks that they are a part of” and “take cues primarily from the people who are closest to them and whose approval they care most about.” The people a candidate seeks praise from before the appointment will be those the judge seeks praise from after the appointment. Social circles usually freeze upon confirmation. It is not enough to simply list an affiliation with the Federalist Society on a resume. (Then again, John Roberts denied being a member, while Professor Barrett let her membership lapse for much of her career and never attended the national convention.) The better question is what the candidate has accomplished with that platform. Ask not what FedSoc has done for you; ask what you have done for Fedsoc. Moreover, there should be serious doubts about any candidate who volunteers his time to groups like the American Bar Association, which has been overtly hostile to conservatives.

Historically, presidents have selected judges based on what might be called “confirmability.” Will this nominee clear enough votes in the Senate, or will they create a controversy that makes a political distraction? However, with the elimination of the filibuster and the abandonment of the blue slip policy for circuit judges, the focus on “confirmability” is simply less important. Instead, the focus should be on “courage.” Liberals understand that judges need backbones. The New York Times reported that Vice President Kamala Harris opposed a nominee for the Supreme Court who “might be too cautious for the moment.” By contrast, Harris thought Judge Ketanji Brown Jackson “would be the boldest option.” Trump should do no less.

Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston, and is the co-author of An Introduction to Constitutional Law: 100+ Supreme Court Cases Everyone Should Know. He is a contributing editor to Civitas Outlook.