While the legal world waits for Donald Trump’s first judicial nominations during his second term, there are whispers among lawyers in D.C. wondering if he will keep to the “Federalist Society” mold of his first term, or move towards more “MAGA” judges. While this view (or concern) has some merit, it’s overstated.
At the end of the day, both Trump and the Republican Senate are going to want good, conservative judges, and that pool of talented lawyers is relatively fixed. The question should be: What kind of talented lawyers will Trump pick? Here the key will be to fight the next judicial war, not the last one.
During Trump’s first term, there were two overarching impulses behind his picks, one tactical (credentials) and one substantive (hostility to the administrative state). Both made sense at the time but are less relevant today.
Tactically the picks needed to have qualifications that would make Dean Roscoe Pound blush. This was because McConnell faced three immediate problems: The filibuster still existed for the Supreme Court, the “blue slip” still existed for the courts of appeals, and the Republican majority was both slim (52-48) and reliant on moderates.
Knowing that he’d have to change the rules to overcome a Supreme Court filibuster, McConnell requested the most well-credentialed pick available to replace Scalia. In Neil Gorsuch he had a Harvard Law graduate who clerked at the Supreme Court and even picked up a doctorate from Oxford. It worked. As McConnell explains in the revised afterward to his memoir, The Long Game, “Gorsuch’s sterling credentials … helped me make the case to my Republican colleagues” to eliminate the filibuster.
It was a similar issue to the circuit blue slip. Around 60 percent of the circuit vacancies in January 2017 — under Senate custom at the time — would have been subject to a Democrat veto. McConnell knew he needed to reform this practice, and to do so he would need to convince 50 of his members to vote for circuit nominees over the loud objections of particular Democrats.
On top of this recall that in 2017 votes 48 through 52 went something like Bob Corker, Jeff Flake, John McCain, Susan Collins, and Lisa Murkowski; a majority depended on moderates and mavericks. By 2018 the majority would be a mere 51-49, with John McCain frequently absent due to cancer treatment. In other words, McConnell still needed credentials. Again in The Long Game, he writes that he said at the time, “Don [McGahn], just send up the best conservative nominees you can, and as quickly as you can, and Chuck [Grassley] and I will take care of the rest.”
Substantively, McConnell and the White House were on a crusade against the administrative state. Gorsuch’s jurisprudential claim to fame was his opposition to Chevron deference. Brett Kavanaugh was a leading guerilla warrior against the administrative state, firing salvos against it like Free Enterprise Fund v. PCAOB. This preference permeated the lower-court selections, too. Eventually Sen. Dianne Feinstein started asking nominees what they had said about the administrative state in their interviews.
McConnell later explained that fighting the administrative state was, in fact, the goal, telling The New York Times that “[d]ismantling the administrative state and empowering people who are actually elected to make decisions has been the motivating force.” He went on, “I think the left thought that all we ever talked about was Roe v. Wade. Frankly, I can’t even remember it coming up. [The administrative state] was the unifying issue.”
Well, they won. Through the establishment of the Major Questions Doctrine, the elimination of Chevron deference, and the likely imminent demise of Humphrey’s Executor, the war against the administrative state will soon be a mopping-up operation. But while Trump’s picks and McConnell’s advice were successful in meeting their goals, if Trump repeats the same approach, he risks fighting the last war.
Start with tactics: The judicial filibuster is dead, and so is the “blue slip.” The Senate has a 53-47 Republican majority, and so far it seems that McConnell himself is “vote 51.” When it comes to judges, the moderates are no longer in charge. This means that the kind of top-of-the-class, clerked-for-four-justices-and-the-Pope, writes-poetry-about-calculus nominees Trump needed to find last time just aren’t necessary politically.
Nominees should still be good, of course: textualist-originalists who did well in law school, clerked for prestigious conservative judges, and have impressive careers are what’s best for the judiciary. But if Trump wants a tie to go to conservatism and not credentialism, it can.
Because credentialism has downsides as well as its benefits. For one thing, the supremely well-credentialed tend to associate with each other, opening up the risk of elite groupthink. For another, credentialism inculcates a disposition to always seek the next brass ring. Sometimes that aligns incentives toward excellence, but it necessarily causes you to focus on the good opinion of others, and that’s the eternal risk to conservative judges.
Move to substance: Is Trump still going to focus on Chevron? While Loper Bright left questions unanswered, to be sure, it’s unlikely that the niceties of Skidmore deference are the most pressing battle today. Perhaps Trump will want to expand the aperture. What has this candidate done about parental rights? Protecting girls’ sports? Standing up to lawfare? Keeping our streets safe from drugs and violent criminals? Protecting our borders? Protecting our children from predators — and predatory business? Applying the Constitution in deep-blue states?
These seem to be the battles of tomorrow — as well as much of the platform on which Trump was elected. Perhaps he will want nominees whose records show that they’re up for those fights.
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.
Michael A. Fragoso is a fellow at the Ethics & Public Policy Center and a partner at Torridon Law PLLC. During the previous Trump administration, he was chief counsel for nominations on the Senate Judiciary Committee and deputy assistant attorney general in the Office of Legal Policy.
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