The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Trump campaign has announced a list of 11 people that a President Donald Trump would consider for a Supreme Court vacancy. The release of the list is interesting mostly to see how Federalist Society members will react. Who will think that it signals anything genuine about Trump's plans for the judiciary?
I think the list is meaningless for that. First, Trump's press release does not commit to choosing from this list. Rather, it states: "The following list of potential Supreme Court justices is representative of the kind of constitutional principles I value and, as President, I plan to use this list as a guide to nominate our next United States Supreme Court Justices." So Trump has a "plan" to use the list as a "guide." That's nice, but it's not a commitment to choosing from the list.
It's true that Trump said in March that when he someday announced a Supreme Court list, he would pick only from the list. But he doesn't say that now. And even if he does commit to that now, given Trump's record it's hard to take such a commitment seriously. Say what you want about Trump, but he is more than willing to change his mind when new circumstances arise. And actually being elected would count as a changed circumstance. You can imagine President Trump's tweet when he explains why he didn't pick from his list: "List of 11 was ideal, but had to compromise with Senate. My nephew John Trump is smart. Be a great judge!"
Finally, if you take the list seriously, it includes a very wide mix of judges. It includes moderates, conservatives and libertarians. It includes those more committed to judicial restraint and those more committed to judicial activism. It includes some distinguished judges and some with less of a national reputation. I assume Trump is counting on conservative and libertarian lawyers to look at the list, see at least one person they like, and decide to support Trump and just hope for the best. But if that happens, I think it will reflect wishful thinking rather than sound judgment.