The Wall Street Journal published an article titled, “Trump Loyalists Push for a Combative Slate of New Judges.” The first sentence repeats the theme of loyalty: “A rising faction within the conservative legal movement is laying the groundwork for Donald Trump to appoint judges who prioritize loyalty to him and aggressively advocate for dismantling the federal government should he win a second term.” The implied connection is clear: Trump loyalists in executive branch seek to install Trump loyalists in the judiciary branch. Nonsense.
There is not a single world in the story to suggest that Trump appointees would be “loyal” to Trump. These judges have a constitutional vision that far surpasses whatever ephemeral issues matter to Trump. Judicial appointments can last up to forty years. Trump will be in office for, at most, four years. And if Trump prevails, he will not have to stand for any more elections, thus no more Trump-election-related litigation. More likely than not, anti-Trump litigation will be brought in blue circuits, where Trump-appointees are a discrete and insular minority. Does anyone think that a handful of Trump appointees on the Ninth Circuit will make a difference? Judges Katsas, Rao, and Walker will be flying solo on the D.C. Circuit for some time. And the Fourth Circuit is lost for a generation. I truly do not understand the thrust of this “loyalist” meme. It is not accurate, and even if accurate, will have no practical effect.
Instead, the true thrust of the piece comes in a quote from Mike Davis:
Future Trump judicial nominees must be “even more bold and more conservative and more fearless,” than those appointed in the first administration, said Republican legal activist Mike Davis, one of the conservative lawyers pushing for a harder line in a potential second Trump administration.
As I’ve written “judicial courage,” should be an important metric for any future judges. I think any plausible judicial nominee will profess fidelity to textualism and originalism. Or at least they will pretend to. That is a given. The better question is what a judge will do with that jurisprudence. To use an analogy, what quantum of originalist evidence is sufficient to upset the status quo. This is not merely a question about stare decisis. I’ve written at some length how Justice Barrett has imposed extremely onerous burdens on litigants seeking to change things. And the Barrett mode is common enough on the lower courts. Of course lower court judges cannot reverse Supreme Court precedent. And individual panels cannot reverse circuit precedent. But between those lines, there is some space for lower-court originalism.
The article goes on to say that conservatives were “surprised” by Justice Gorsuch’s Bostock majority and Justice Kavanaugh’s concurrences.
Some were shocked in 2020, for instance, when Gorsuch, the most libertarian of the Trump three, joined with liberal justices and Chief Justice John Roberts to extend federal civil-rights protections to LGBT employees. Others have expressed exasperation at Kavanaugh’s practice of filing concurring opinions that credit the concerns of liberal dissenters even when he votes with the conservative majority—something he did in the 2022 decision eliminating women’s federal right to abortion before fetal viability.
No one should have been surprised by anyone the Trump appointees have done. They are behaving now exactly as they behaved below. To the extent that conservatives are frustrated with these Justices, they should reconsider the criteria for appointment.
The rest of the article tries to sketch some divide between the “old guard” and the “new guard” within the Federalist Society.
The movement’s old guard, including lawyers who helped found the Federalist Society in the 1980s, is pushing back, fearful of discrediting the conservative principles they worked for decades to legitimize within a legal profession that leaned left.
Since losing the 2020 election, Trump has broken with Federalist Society leaders who had eagerly boosted his blitz of judicial appointments during his first term but later balked at his efforts to thwart President Biden’s victory and didn’t openly support him as he faced dozens of criminal charges.
Trump has gravitated to more-combative lawyers outside the conservative legal establishment who have said they want to hobble regulatory agencies and concentrate power in the White House. The shift has sidelined the old guard in favor of groups like America First Legal, run by former Trump adviser Stephen Miller, who isn’t a lawyer but said he set up the group to fight what it called “an unholy alliance of corrupt special interests, big tech titans, the fake news media and liberal Washington politicians.” . . . .
Longtime Federalist Society members said the group was designed not to advocate for specific positions but to promote conservative and libertarian thought more broadly—and provide a career network for right-leaning lawyers interested in government and the judiciary.
“I’m one of the traditionalists who believe the strength of the Federalist Society is that it doesn’t take positions, it allows its members to take positions,” said former Solicitor General Ted Olson, who took part in the 1982 conference at Yale Law School where the group was founded. . . .
Sarah Isgur, who was a spokeswoman for the Trump Justice Department and considers herself more of a traditional conservative, said that while the Federalist Society historically sought to associate its movement with the most prestigious law schools and professional accomplishments, the upstarts have other criteria.
The direction of FedSoc seems separate from the question about potential Trump nominees. But I do think that FedSoc is standing at something of a turning point, given the pending search for President.
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