Potential candidates for Supreme Court under a second Donald Trump term
WASHINGTON — Donald Trump made history in 2016 when, as a presidential candidate, he issued an initial list of 11 people he would use as a ‘guide’ for potential Supreme Court nominees, to allay concerns he would not choose conservative judges. He added to those lists while president, which included his three high court candidates: Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
He was the first major presidential candidate to telegraph his political strategy so clearly on a tea-leaves topic that is fraught with uncertainty.
Sources close to the presumptive GOP nominee say he again plans to release a similar list in coming weeks or months. As he did eight years ago, Trump will be emphatic, saying he would only choose from the new slates of candidates if there is a Supreme Court vacancy.
As he did during his first election campaign and as president, Trump has been consulting with conservative legal voices, including those from the Federalist Society and the Heritage Foundation. He has also spoken with GOP members of Congress to seek their input, say sources close to the former president.
The level of serious consideration for any individual candidate remains a highly flexible, amorphous standard, given Trump’s reputation for shifting political views and strategies.
Trump’s large number of federal judicial appointments (245) in his first term would give him a deep bench of candidates to possibly serve on the Supreme Court, including a number who clerked for Justices Clarence Thomas and Brett Kavanaugh as well as the late Antonin Scalia.
Sources say that professional pedigree would be an important factor to Trump, since all three of his high court picks also clerked there (Gorsuch and Kavanaugh for Justice Anthony Kennedy, Barrett for Scalia).
What follows is an unofficial list of potential candidates for the Supreme Court by Trump. It was compiled from a number of sources, including officials within his inner circle, and Republican political and legal circles.
His team is still compiling a public list that remains in flux, but these are some of the names being considered:
Judge Amul Thapar, U.S. Court of Appeals for the 6th Circuit, chambers in Covington, Kentucky
Born 1969. Thapar was the first federal district court judge of South Asian descent, whose family emigrated from India. Trump interviewed him personally in 2017 for the Scalia vacancy while still a district judge, then became the president’s second judicial pick when elevated to the appeals court. He was later interviewed by the president for the 2018 high court seat filled by Kavanaugh. Thapar would have the enthusiastic support of his home state senator, Minority Leader Mitch McConnell, R-Ky. Thapar was previously a U.S. attorney.
Judge James Ho, 5th Circuit U.S. Court of Appeals, Dallas
Born 1973. A former Justice Thomas law clerk and former Texas solicitor general, Ho was appointed to the federal bench in 2018. Born in Taiwan, his parents immigrated to California when he was a child. If nominated, he would be the first Asian-American justice. In October remarks at the Heritage Foundation, Ho urged his conservative bench colleagues to ‘get comfortable’ with criticism over their rulings, speaking out against ‘fair-weather originalism’ over that judicial philosophy.
Judge Gregory Katsas, D.C. Circuit U.S. Court of Appeals, Washington
Born 1964. Add him to the list of onetime Justice Thomas law clerks who could make a Supreme Court short list. A former Trump White House deputy counsel, he was appointed to the high-profile appeals court in 2017, where Thomas, Scalia, Kavanaugh and Chief Justice John Roberts all once served. His age may be a potential drawback if the president is seeking someone younger who would presumably carve a longer legacy on the bench.
Judge Neomi Rao, D.C. Circuit U.S. Court of Appeals, Washington
Born 1973. Rao grew up in Detroit, the daughter of Indian immigrant physicians. Like her D.C. Circuit colleague Katsas, Rao was a Justice Thomas law clerk. After working as a private attorney and law professor, she was nominated by Trump to the federal appeals court seat held by now-Justice Kavanaugh.
Judge Barbara Lagoa, 11th Circuit U.S. Court of Appeals, Miami
Born 1967. Former Florida Supreme Court justice, the first Hispanic woman and the first Cuban-American woman on that bench. A finalist for the 2020 Supreme Court vacancy that went to Justice Barrett.
Kate Comerford Todd, former deputy White House counsel
Born 1975. Another former Justice Thomas law clerk, she was given serious consideration for the 2020 high court vacancy that went to Justice Barrett. At the time, Todd was a key Trump White House adviser on judicial selection, among other areas. Now a private attorney, she could play another prominent role in a Trump administration, but her lack of judicial experience may be a drawback. Described as smart, principled, with a strong ‘originalist’ view of the Constitution.
Judge Lawrence Van Dyke, 9th Circuit U.S. Court of Appeals, Reno, Nevada
Born 1972. A former Nevada and Montana solicitor general who worked for his family’s Montana construction business while in college. His supporters say that as a private attorney, Van Dyke did pro bono work for both the conservative Alliance Defending Freedom and the progressive ACLU. His 2019 Senate confirmation to the appeals court was contentious, with the nominee tearfully denying claims he was and would be unfair as a judge to the LGBTQ+ community.
Judge Britt Grant, 11th Circuit U.S. Court of Appeals, Atlanta
Born 1978. Former justice on the Georgia Supreme Court. Prior to her state appointment in 2017, Grant served as the Georgia solicitor general and as a private attorney. She served as law clerk to then-Judge Brett Kavanaugh of the D.C. Circuit. He swore her in to her current post in August 2018 during his own high court confirmation.
Judge Kyle Duncan, 5th Circuit U.S. Court of Appeals, Baton Rouge, Louisiana
Born 1972. The Louisiana native worked in the state’s attorney general’s office and was then general counsel of the Becket Fund for Religious Liberty. As a private attorney, he represented 15 states before the Supreme Court that had prohibited same-sex marriage. The high court ultimately ruled such laws unconstitutional. Duncan’s views on LGBTQ+ rights were a major source of contention at his Senate confirmation hearings for the appellate court seat in 2018.
Judge Andrew Oldham, 5th Circuit U.S. Court of Appeals, Austin, Texas
Born 1978. Former law clerk to Justice Alito, and served as general counsel to Republican Texas Gov. Greg Abbot before assuming his federal judicial seat.
Judge Kevin Newsom, 11th Circuit U.S. Court of Appeals, Birmingham, Alabama
Born 1972. A former Justice David Souter law clerk, Newsom was Alabama’s solicitor general before joining the federal bench.
Judge Joan Larsen, 6th Circuit U.S. Court of Appeals, Ann Arbor, Michigan
Born 1968. A former law clerk to Justice Scalia, she delivered one of the tributes at his memorial service in March 2016. She served in the Justice Department office that produced the legal justifications for the enhanced interrogation techniques, including waterboarding, that critics have called torture. Larsen was previously on the Michigan Supreme Court before becoming a federal appellate judge in 2017. A finalist for the high court in 2018 and 2020, Trump teased to Fox News four years ago he was considering ‘a great one from Michigan’ and later said she was ‘very talented.’ The seat ultimately went to Justice Barrett.
As a college student, Larsen volunteered for Democrat Joe Biden’s 1988 presidential candidacy – ‘stuffing envelopes, making phone calls,’ as she recalled – but her current conservative credentials are little in doubt.
Judge David Stras, 8th Circuit U.S. Court of Appeals, Minneapolis
Born 1974. Served on the Minnesota Supreme Court and believed to be the first Jewish member of the state’s high court. Stras, too, clerked for Justice Thomas and once headed the Institute for Law and Justice, a well-respected academic think tank on public policy and judicial politics. Nominated in 2017 to sit on the appeals court.
Kristen Waggoner, Alliance Defending Freedom CEO, president and general counsel
Born 1972. Prominent conservative legal advocate whose faith-based organization has won 15 cases before the Supreme Court. That includes the Masterpiece Cakeshop litigation over the right of private business owners to refuse their artistic services that might violate their ‘sincerely-held’ religious beliefs, including opposing same-sex marriage. Waggoner is a Washington state native.
Judge Allison Jones Rushing, 4th Circuit U.S. Court of Appeals, Asheville, North Carolina
Born 1982. The North Carolina native was a law clerk for then-Judge Gorsuch and later Justice Thomas. She, too, was considered for the 2020 high court vacancy.
Judge Patrick Wyrick, U.S. District Court for Western Oklahoma, Oklahoma City
Born 1981. Prior to his appointment in 2019, the Atoka, Oklahoma, native served on the state’s highest court and as the state’s solicitor general.
Sens. Tom Cotton, R-Ark., and Mike Lee, R-Utah
A few members of Congress typically get mentioned on these lists, often as a political courtesy, especially to those senators that would vote on any nomination. Frequently mentioned are two members of the Senate Judiciary Committee. Cotton is an outspoken Trump supporter and a vocal advocate for gun rights and immigration reform. Lee may have the best credentials of any lawmaker to be a justice: a former appellate and constitutional lawyer, both in Utah and Washington, who twice clerked for Alito on both the federal appeals court and later the Supreme Court. The relative youth of both senators (Cotton is 47 and Lee is 52) would ensure either could serve many years on the high court and bring a unique, politically charged dynamic to it.