What Should Trump’s Circuit Nominees Look Like?
When President Trump’s first term began, he inherited a slew of circuit court vacancies. However, for his second term, there are likely to be far fewer circuit court seats to fill. By my count, Trump can make appointments to fill one seat on the First Circuit (Maine), two seats on the Third Circuit (Delaware and New Jersey), one seat on the Sixth Circuit (Tennessee), one seat on the Seventh Circuit (Wisconsin), and one seat on the Ninth Circuit (California). (If I’ve forgotten any others, please email me).
What should Trump look for in filling these seats? In a series of writings, Mike Fraogo sketches out how Trump 2.0 judges may differ from Trump 1.0 judges.
At the Federalist, Fragoso explains:
The approach adopted to pick judges in 2017 worked extremely well. But, in the end, it’s 2025, not 2017. The times and the law have changed, in no small part thanks to Trump’s judicial appointments. While Trump will surely keep looking for talented and well-credentialed lawyers to put on the bench, he will hopefully adapt his methods to reflect the needs of today and anticipate those of tomorrow.
And what are those needs of today and tomorrow? Fragoso suggests that the type of nominee may depend on the balance of the circuit. At Public Discourse, Fragoso writes that Trump should appoint judges to liberal circuits that will appeal to Justice Barrett, the Court’s median voter:
On circuits dominated by liberals (such as the First or Fourth or the District of Columbia), the only chance conservatives have is intervention by the Supreme Court. It therefore makes sense to find conservative judges for liberal courts who can effectively speak the language of [Barrett’s] process-formalist originalism in order to optimize the chances of Supreme Court review.
In other words, lower-court judges who think like Barrett are more likely to catch Justice Barrett’s attention in a cert petition.
By contrast, in conservative circuits, there is no need to appoint a Barrett-centric judge:
On circuit courts dominated by conservatives (such as the Third, the Fifth, the Sixth, or the Eighth), the opposite is probably the case. They don’t need the Supreme Court to save them; they’re typically the court of last resort. In that
Article from Reason.com
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