The Volokh Conspiracy
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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 Fragoso 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 case the more William Rehnquists the better, because Barrett's jurisprudential inclination is not to police their day-to-day rulings.
I'm not sure this is accurate. Justice Barrett has a tendency to reverse the Fifth Circuit on a fairly regular basis.
At National Review, Fragoso applies this approach to the vacancy for Chief Judge Sykes's seat. (Fragoso clerked for Sykes). The Seventh Circuit is, more-or-less, a court in equipoise. Here is how Fragoso breaks down the votes:
What does this mean practically? It means that for conservatives to win at the Seventh Circuit, they must run the ball up the middle. There is simply not a cohesive conservative bloc on the court. Brennan is a movement conservative; Kirsch is a hard-nosed prosecutor conservative; Easterbrook is Easterbrook; St. Eve is an establishment conservative; Scudder is a moderate conservative; Kolar seems to be a conservative moderate; and Pryor seems to be a liberal moderate. Maldonado and Jackson-Akiwumi always hold down the left flank, usually joined by Lee.
You see the nomenclature: movement conservative, prosecutor conservative, establishment conservative, and moderate conservative. If you think all Republican-appointed judges are the same, you are quite wrong. By the way, I think Judge Brennan will soon be the Chief Judge of the Seventh Circuit. I hope Chief Justice Roberts is ready for a movement conservative on the Judicial Conference.
Fragoso explains that any nominee to succeed Sykes should not be a "movement conservative" or an "arch-conservative," but should instead be someone willing to persuade the more-moderate members of the en banc court.
To succeed en banc, then, conservatives will need to persuade three of Easterbrook, St. Eve, Scudder, and Kolar. The best way to do that is to replace Sykes with a judge who is smart, personable, and credible enough to help persuade those very smart, very experienced, and relatively non-doctrinaire members of the court to agree with him or her. The left flank is utterly unpersuasive on the Seventh, so there is an opportunity to turn the middle toward the right — but not if the right is perceived by the center as doctrinaire or otherwise non-credible. Replacing Sykes with an arch-conservative will yield some great dissents.
And in turn, that more moderate appointee can issue favorable rulings, without requiring the parties to seek cert:
This matters for a number of reasons. The Supreme Court simply doesn't grant cert anymore. Well, it does, but exceedingly rarely and never when you want it. So one must assume that politically salient cases will die in the circuit. This is important because Indiana is a conservative innovator state and Wisconsin is a political battleground. With those cases terminating in Chicago 99 percent of the time, it's more important to secure judgments than to own the libs with a stirring dissent.
This is a shot-across-the-bow at the sort of appointees from Trump's first term that have generated the most headlines. Indeed, the Trump judges have blown away the Obama judges in terms of citations. Many of those Trump noms are better at writing dissents than persuading moderate colleagues. But then again, what does it mean to persuade colleagues: dilute and water down a position to avoid saying anything important. If the goal is to simply get courts to generally vote in a conservative direction without actually advancing conservative jurisprudence, then Fragoso's advice makes a lot of sense. But, if one believes that judges take an oath to faithfully interpret the Constitution, and those votes should not be cast with an eye towards cobbling together an en banc majority, then Fragoso's advice is problematic.
In 2009, Laurence Tribe wrote that President Obama should select Elena Kagan for the Souter seat because she would be effective at bringing Justice Kennedy to the liberal wing of the Court. Fragoso is basically offering the same advice, but in reverse: Trump should select judges who will bring moderates to the right. On the Supreme Court at least, I don't think I've seen a moderate-conservative bring a moderate to the right. The ratchet seems to only go to the left. Can anyone really persuade Frank Easterbrook to do anything other than what Frank Easterbrook wants to do? If so, he would have probably taken senior status many years ago. Perhaps the one outlier is Chief Justice Roberts persuading Justices Breyer and Kagan to join his Medicaid Expansion ruling, but NFIB is sui generis in every way.
In my view, Fragoso's advice seems short-sighted, as balances of courts shift over time. Will Trump's legacy on the courts really be defined by appointing a bunch of personable and persuasive individuals who put originalism and textualism on the back-burner when the votes aren't there? I'm skeptical. As I've written, all Presidents should focus on nominees who have exhibited judicial courage, and stay away from nominees whose primary focus is on getting along. Indeed, lower court judges have a duty to flag issues for the Supreme Court review: there is a trickle-up relationship between lower courts, stare decisis, and originalism. I freely admit my approach may yield fewer favorable en banc votes. But from my position, at least, ideas matter more than fleeting majorities.
