The Volokh Conspiracy
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New Essay at Civitas: "Trump Must Pick Judges Who Have Publicly Demonstrated Their Courage"
"The most important predictor of behavior on the bench is judicial courage."
Today, the Civitas Institute published my new essay, titled "Trump Must Pick Judges Who Have Publicly Demonstrated Their Courage."
Here is the introduction:
One of the defining legacies of President Trump's first term is the judiciary. He appointed three Supreme Court justices, fifty-four judges to the courts of appeals, and 174 judges to the federal district courts. It is unlikely that Trump will top those numbers in his second term. 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. Trump's first batch of picks checked all conventional boxes: they were smart, well-credentialed, and impactful. Trump's three appointees to the Supreme Court have already joined landmark decisions concerning abortion, the Second Amendment, and religious liberty. Moreover, a recent study demonstrates that the Trump lower court nominees have dwarfed the influence of Obama judges, and I suspect there will be an even more significant disparity for Biden judges.
Yet, not all Trump judges are made from the same stuff. While they may share similar judicial philosophy–it is easy enough to profess fidelity to originalism at a confirmation hearing–they do not all put it to the same use. In generations past, scholars and critics charged that some judges were "judicial activists" while others engaged in "judicial restraint." These terms are largely meaningless and fail to account for how judges rule in many cases. Instead, a different metric is a far greater predictor of behavior on the bench: judicial courage. Will a judge's decisions be affected, in any way, by how legal elites will respond? Stated differently, does the judge have a fear of being booed? Any judicial nominee would deny having such a fragile disposition. But there is only one way to prove it: 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. Courage is like a muscle: it must be exercised. Every future Trump nominee should be able to show such steadfastness by word and deed.
And this paragraph will be relevant for FedSoc members:
Third, we should judge a judge by the company he keeps, or in Latin, noscitur a sociis. A recent book demonstrates that judges are likely "to follow the lead of the elite social networks that they are a part of" and "take cues primarily from the people who are closest to them and whose approval they care most about." The people a candidate seeks praise from before the appointment will be those the judge seeks praise from after the appointment. Social circles usually freeze upon confirmation. It is not enough to simply list an affiliation with the Federalist Society on a resume. (Then again, John Roberts denied being a member, while Professor Barrett let her membership lapse for much of her career and never attended the national convention.) The better question is what the candidate has accomplished with that platform. Ask not what FedSoc has done for you; ask what you have done for Fedsoc. Moreover, there should be serious doubts about any candidate who volunteers his time to groups like the American Bar Association, which has been overtly hostile to conservatives.
