by Jorge Gomez • 4 minutes
The Trump administration has a tremendous opportunity to impact the federal judiciary for generations. During his first term, President Trump left a defining legacy on the bench by appointing more than 230 judges, which included three Supreme Court justices, 54 judges to the courts of appeals and more than 170 to district courts. Many of the Trump judges serving on the bench for life are among the most committed to religious liberty and to upholding the original meaning of the Constitution.
Going into this second term, the Trump administration can cement and extend that legacy. But this time, Trump will have to be even more intentional and diligent about every one of his nominees, according to many judicial experts.
“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,” explains Josh Blackman, professor at the South Texas College of Law.
Blackman says that Trump’s nominees must show judicial courage, which he defines as “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,” Blackman adds. “Courage is like a muscle: it must be exercised. Every future Trump nominee should be able to show such steadfastness by word and deed.”
Mike Davis, who leads the conservative judicial advocacy group Article III Project, says there’s an urgent need for “even more bold and fearless judges in President Trump’s second term.”
Trump has to make sure he selects nominees with “judicial fortitude,” says Robert Luther, who served as associate counsel to Trump during his first term and also assisted in the judicial nomination process. According to Luther, fortitude is the ability to withstand external pressures.
“We were looking for leaders; judges who would not be intimidated by the press, their colleagues, or even some Stanford Law students,” Luther wrote in the Harvard Journal of Law & Public Policy.
“This is an important and under-covered quality that is necessary in effective judges,” Luther added. “Those of us involved in judicial selection during the Trump administration emphasized the quality of judicial fortitude in our nominees. And the results speak for themselves.”
In a recent study, NYU law professor Stephen Choi reviewed the record and performance of judges appointed during the first Trump administration. According to Choi, Trump judges are “mavericks” and consistently show a strong commitment to religious freedom.
“Among Trump’s promises were that his judges would be pro-religion,” Choi explains. “We’ve done papers looking at outcomes…and Trump judges have vindicated his claims regarding how they would behave: ruling systematically in in favor of religion.”
In an op-ed for National Catholic Register, Notre Dame law professor Gerard Bradley argues there’s a “compelling need for an ever more discriminating vetting of potential judicial nominees, to see precisely if they understand what is at stake in crucial cases, and what it will take to resolve them rightly.”
“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,” Bradley writes. “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.”
Bradley notes that the Trump administration will need to pay special attention to nominees’ records on religious liberty, even more than it did the first time. He specifically references First Liberty’s landmark Supreme Court victory in Kennedy v. Bremerton School District, which caused a seismic shift in religious liberty law.
“The federal courts now must rebuild that crucial body of law from the ground up,” Bradley adds. “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.”
President Trump has about 40 vacancies to fill, less than half the number when he took office in January 2017. With fewer vacancies available, it’s even more important that the President select the best nominees. Scholars point out that Trump’s appointments to current vacancies could change the ideological balance of some courts to a conservative majority.
John Collins, a professor at George Washington University Law School, told Reuters that Trump “will likely be able to both lock in conservative majorities for the foreseeable future on some courts and narrow or flip liberal majorities on others.”
Trump has said that he “will once again appoint rock-solid conservative judges” and reiterated his commitment to selecting the best and most qualified nominees.
Based on his record and campaign promises, there’s hope that Trump will remain committed to appointing judges who will rule according to principle—and not personal preference or radical ideology.
First Liberty will continue evaluating the record of judicial nominees and providing the facts with the administration on which ones are best qualified to protect your religious freedom and serve on the federal bench.
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