By mid-May 2016, Donald Trump had sewn up the Republican presidential nomination. But he was still fighting to calm social conservatives’ worries about him. Their paramount goal was overturning Roe v. Wade. 

Trump took the unprecedented step of publishing a list of 11 prospective nominees to the Supreme Court, all of whom — conservatives reasonably thought — would vote to reverse Roe. Trump said that his list was “representative of the kind of constitutional principles I value and, as president, I plan to use this list as a guide to nominate our next United States Supreme Court justices.”

He did not identify anyone who worked on the list. It was widely reported, however, that the Federalist Society and the Heritage Foundation — both tried-and-true conservative outfits — had done so. Trump added 10 names a few months later. Neil Gorsuch was one of them. He became Trump’s first nominee to the Supreme Court. 

Tipping his judicial hand likely secured Trump’s election. He won by a whisker. Few social conservatives were tempted to vote for Hillary Clinton. But enough of them in battleground states might have stayed home or wrote in someone other than Trump, to cost him the election.  

President Trump added five more prospective justices to his short list in November 2017. Brett Kavanaugh and Amy Barrett were on it. In September 2020, Trump published a fourth iteration, to further reassure anxious social conservatives during his election battle with Joe Biden. 

All three Trump-nominated justices subsequently voted to overturn Roe in the June 2022 Dobbs decision.

This time it is completely different. The president-elect has published no list of prospective judicial nominees. Trump has made no deals with social conservatives and, apart from some aspects of the transgender issue, has offered them little encouragement. He ran on a platform of border control, economic prosperity and stable peace abroad. Trump has distanced himself from the pro-life cause, saying that it is now a state and not a federal question. (He is wrong about that, by the way. It is both.)

The first Trump administration accomplished a great deal of good on the issues that matter most to social conservatives, not only abortion but also religious liberty, family policy and gender issues. Almost none of this good work was accomplished legislatively; that is, by Congress. Almost all of it was accomplished by administrative rule-making, executive orders and various cabinet departments’ policies. 

These types of initiatives have a precariously short shelf-life. Presidents can — and Joe Biden did — undo much of it soon after taking office. Biden left some of Trump’s work on religious liberty intact. He has not moved quickly enough to undo some good administrative rules (a cumbersome process). Biden nonetheless gutted most of Trump’s good work.

However, Trump’s greatest service to religion, to the unborn, to the family, and to something resembling traditional morality, is the judiciary he shaped.  

 

Decisive Turning Point

Roe’s demise is huge. But it is not the end of court battles over abortion. Dobbs instead marks a decisive turning point in the battle to equally protect the lives of every human being. Justice Alito’s opinion for the Dobbs’ Court included a cogent argument that permissive abortion laws are unconstitutional because they arbitrarily deem unborn children to be bereft of rights. A majority of the Court subscribed to this argument. That argument is potentially epochal.

It will take a while to get courts – and let’s face it, we are talking about conservative-leaning judges – to digest and deploy the Supreme Court’s lesson here. Given the dreadful pattern of pro-abortion popular state votes over the last couple of years, the unborn need this argument and judges receptive to it more than ever. And the payoff is exactly what the pro-life movement has long sought: recognition of everyone as a person with a right to life from conception until natural death.

In all, Donald Trump filled 234 judicial posts between 2017 and 2021. As a group these lawyers were superbly credentialed. They have largely proven to be the judges that social conservatives hoped for when they pushed Trump across the finish line in 2016. 

Biden has appointed 213 judges so far. Senate majority leader Chuck Schumer says that he will ramp that number up. There are 32 nominees in the confirmation pipeline right now. So far considered, Biden’s judges cancel out Trump’s judges. 

It is likely that Trump will have as many as 200 seats to fill over the next four years, including two or more on the Supreme Court. The next administration is pivotal for our judiciary, and therefore to the issues most concerning social conservatives.  

 

Supreme Court

As to the Supreme Court: Justices Alito and Thomas are candidates for retirement and, of course, no one can be sure about the health or plans of even younger justices. Who is going to be on the short list for the next Supreme Court opening? 

Start with anyone who was on Trump’s previous lists but who has not already been elevated to the Court. Then eliminate anyone who is over 55 years old, on the view that any nomination battle worth having is one worth winning for the long haul. The Constitution’s life tenure guarantee means that a 50-year-old nominee could be expected to serve for two or three decades. (The last two nominees — Amy Barrett and Ketanji Jackson — were 48 and 51 respectively when nominated.) Even culled for youth, the lists contain many excellent prospects. 

Probably the leading possibility right now is Amul Thapar, a federal appellate judge with chambers in Covington, Kentucky. Others prominently mentioned are Greg Katsas (District of Columbia) and Jim Ho (based in Houston). Kyle Duncan (with chambers in Baton Rouge) would be an excellent choice among those on Trump’s announced lists. Lawrence Van Dyke (who sits on the appeals court based in San Francisco) and St. Louis federal trial Judge Sarah Pitlyk would also be outstanding choices, too. Each was on Trump’s 2020 public roster of nominees. 

Either of the former solicitor generals of the United States — basically, the government’s Supreme Court litigator — on Trump’s 2020 list would be excellent choices. These men are Paul Clement and Noel Francisco, both now in the private practice of law.

Appellate Judge Andrew Oldham, who has chambers in Austin, Texas, is the most likely Supreme Court nominee who is not on the previous lists. Another excellent off-list choice would be Julius “Jay” Richardson, a 48-year-old member of the Fourth Circuit with offices in Columbia, South Carolina. So, too, Eric Murphy, who is practicing law in Columbus, Ohio. 

 

Federal Trial and Appellate Courts

What about appointments to the federal trial and circuit appellate courts? After all, all but three of Trump’s 234 judicial appointments last time were to these courts. The vast majority of federal litigation, including the most important moral issues, ends in them. The Supreme Court issues opinions in around 100 cases a year. Hundreds of thousands of federal lawsuits are filed annually.

The judicial selection process last time was searching, fair, consistent, disciplined, rigorous; in short, highly professional. So far it appears that the process this time might be more ad hoc, less focused on quality than on connections, first impressions and perceived loyalty to Trump’s agenda. 

There is one more thing to consider when talking about judges this time, something that makes the whole matter more momentous and fraught. Eight years ago, a kind of conventional legal conservatism could do the job that needed to be done on the bench. Now it is different. Now we are at an inflection point, a crossroads, in constitutional law. Federal judges will now be making some fateful choices across a range of issues at the foundation of our common life. All of these choices include but also transcend conventional legal analysis. 

Proper resolution of these issues, even as strictly legal matters, will require judges to get out of their comfort zone, to ask and answer fundamental questions about the human person, about human well-being and about justice. The answers to these questions lie at the edge of or simply beyond ordinary legal analysis. They nonetheless constitute the backbone of the law, its moral foundation, its animating spirit. 

Here are four of many possible examples of what I mean. 

One. I already mentioned that Dobbs is the turning point and not the terminal point of our constitutional battle for the lives of our unborn brothers and sisters. When the Supreme Court buried Roe it repudiated that decision’s treatment of unborn human beings as nonpersons. Henceforth, judges are called to affirm the right-to-life of the unborn, by and through recognizing them to be persons like you and me. Judges are being led to this conclusion by the Court’s opinion in Dobbs. But the truth about when people begin is needed to finally get the constitutional guarantee of equal legal protection right. That every one of us came to be at the moment of conception is a “value” judgment that some conservative judges have said is way beyond the competence of judges to affirm. Not so.

Two. Standing First Amendment free speech doctrines as they pertain to the scourge of pornography, are simply inept in our digital world. They need to be totally revamped. That rebuild will have to take frank stock of what healthy psycho-sexual development requires. This candid appraisal in turn requires necessarily includes morally normative thinking — what’s right and wrong — about sexual activity. Judges will have to enter this way of thinking to determine what is free — and not free — about pornographic “speech.”

Three. “Transgenderism” has spawned a host of legal problems and questions. These have to do with fair sporting competition, job discrimination, compelled usage of preferred pronouns, medical treatments of minors, access to sex-specific spaces (including prison cells) and military service. Sometimes these matters can be resolved in court by common patterns of legal reasoning. But not all of them can be and none of them can be all of the time. The metaphysical truth that no one is born in the wrong body — that each of us is indelibly male or female — is essential for getting these cases right. Judges will have to affirm that truth as the master principle in this area of constitutional law.

Four. Leave aside a trip into the weeds of our inherited church-state constitutional law. It is enough to say that, with the Court’s abandonment of its aggressively secularist doctrines about the Establishment Clause in a 2022 case about a public high-school football coach’s post-game prayer, the federal courts now must rebuild that crucial body of law from the ground up. History will inform their choices, as it should. But a sound understanding of what religion is and is about, its relationship to true moral norms, and of religion’s place in the common good of our society, will mightily shape where they take our law of religion and religious freedom next. The pending challenge to a Louisiana law requiring that public schools display of the Ten Commandments will force these questions upon the attention of our courts.

These concluding considerations point to the compelling need for an ever more discriminating vetting of potential judicial nominees, to see precisely if they understand what is at stake in these crucial cases, and what it will take to resolve them rightly.