Donald Trump’s potential SCOTUS picks
WHEN HE RAN for president in 2016, Donald Trump released two lists of potential justices to assure Republicans he would choose conservatives to fill Supreme Court vacancies. He issued a third in 2017 and another in 2020—days before Ruth Bader Ginsburg’s death let him cement a 6-3 conservative majority on the court.
Mr Trump issued no lists this time because, as he said last month, he “no longer need[ed]” to shore up his conservative bona fides. Thanks to Mr Trump the court has overturned Roe v Wade, bolstered gun rights, hobbled administrative agencies, battered the wall separating church from state and all but immunised presidents from criminal prosecution. Now, in his second term, Mr Trump may get to appoint at least two more justices. Justice Clarence Thomas has been on the court for more than three decades. Justice Samuel Alito mused last summer about a possible retirement. Replacing both would take Mr Trump’s count to five justices, a majority of the court and a feat only a handful of presidents have managed.
Who would they be? One contender is James Ho, who was tapped by Mr Trump in 2017 for a seat on an appellate court—and who appeared on his 2020 list. Judge Ho is the most combative jurist on the Fifth Circuit Court of Appeals, America’s most conservative intermediate court.
In June, writing for a unanimous Supreme Court, Justice Brett Kavanaugh laid out an error in a ruling by Judge Ho and two colleagues that had rolled back access to mifepristone, an abortion drug. The doctors challenging the Food and Drug Administration’s regulations, Justice Kavanaugh explained, lacked the standing to sue because the mifepristone rules had caused them no harm. No mention was made of Judge Ho’s peculiar argument that doctors who “delight in working with their unborn patients” can challenge rules on abortion pills because they “experience an aesthetic injury” when fetuses are aborted.
As solicitor-general of Texas in 2009, Judge Ho wrote a brief describing the right to bear arms as “the ultimate guarantor of all the other liberties enjoyed by Americans”. He inserts himself into culture-war battles, for example boycotting graduates of Yale and Columbia for clerkships. The man the 51-year-old could replace, Justice Thomas (at 76, the oldest sitting justice), hired him as a law clerk in 2005. Both say they interpret the constitution according to its original meaning.
A colleague on the Fifth Circuit could also find himself elevated if the justice he clerked for in 2008, Samuel Alito, retires. Andrew Oldham, aged 46, may lack Judge Ho’s bombast, but his views are just as radical. At his confirmation hearing in 2018 he declined to say whether Brown v Board of Education, which declared segregation in schools unconstitutional, was correctly decided. He has pursued a deregulatory agenda on the Fifth Circuit that has, at times, found friendly majorities at the Supreme Court. With Republicans taking over control of the Senate, little will prevent Mr Trump from seating the likes of Judges Ho and Oldham—making the court more MAGA-friendly for years to come. ■