Home / Expert Testimony / Trump’s smart outsourcing of judicial picks
Minnesota Supreme Court Justice David Stras questions attorneys during a hearing in 2012. He was nominated to the 8th Circuit this week by President Trump(AP file photo)
Minnesota Supreme Court Justice David Stras questions attorneys during a hearing in 2012. He was nominated to the 8th Circuit this week by President Trump(AP file photo)

Trump’s smart outsourcing of judicial picks

By Noah Feldman

Plenty of Donald Trump’s decisions have been outside the conservative mainstream. But when it comes to judicial nominees, the Republican president seems to be calling them right out of the Federalist Society playbook.

First came his U.S. Supreme Court nominee, Neil Gorsuch, whose selection was predictable based on his elite legal conservative credentials. Now the individuals in his first wave of appellate nominees seem to be cut from the same cloth.

I know several of the nominees personally and others by reputation — and that’s not a demographic accident. Trump is naming judges from my generational cohort, roughly mid-40s to early 50s. Lots of the nominees come from the legal academy and clerked for the Supreme Court. These are environments in which legal elites meet early and stay loosely in touch for a lifetime.

There are plenty of serious, principled conservatives in these circles, the kind of people who can leave an imprint on the courts for decades. Trump, or his advisers, seems to be doing a reasonable job of identifying these folks. Following the model of the successful Gorsuch confirmation, they expect they can get most or all of them confirmed.

That’s ultimately a good thing. It’s not that I agree with the views or jurisprudence of most of these nominees — I don’t. It’s that a president who has a Senate majority is entitled to name judges.

The Gorsuch fight had the distinct background of the outrageous denial of a vote on President Barack Obama’s nominee for the seat, Judge Merrick Garland. The confirmation votes for the federal judges will come against similar Republican foot-dragging with respect to Obama’s appellate nominees.

But eventually Trump is going to get some judges appointed. And these are better picks than one might have expected — maybe better than one could have hoped.

Professor Amy Coney Barrett of the University of Notre Dame, nominated for the 7th Circuit,  clerked for Justice Antonin Scalia the same year I clerked for Justice David Souter. Out of all the law clerks for all the justices, she was one of the standouts for the pure power of her legal mind, especially on complex statutory questions.

In fact, my approach to every really difficult statutory interpretation case was first to try and figure it out for myself, then ask Coney (as she was known then) and Justice Stephen Breyer’s clerk Jenny Martinez, now of Stanford Law School, what they thought. Inevitably, they had both analyzed the issues at a much deeper level than I had.

I don’t agree with Barrett on too much, jurisprudentially speaking. But she’s a top flight, indeed brilliant lawyer. In a Democratic administration, the equally brilliant Martinez would deserve the judgeship. In a Republican one, it seems fair for it to go to Barrett.

Kevin Newsom is another nominee I know, because he clerked for Souter the year after I did. I remember when Souter interviewed him for the job. He had clerked for conservative 9th Circuit judge, Diarmuid O’Scannlain. That rightly made no difference to Souter; he was hiring a law clerk, not that clerk’s prior judge. Newsom is nominated to the 11th Circuit.


It’s also impressive — and right — that the Trump administration isn’t holding the Souter clerkship against Newsom. Souter had many liberal clerks over the years, but also his share of responsible, thoughtful conservatives.

Other nominees I know by reputation. Justice Joan Larsen, nominated to the 6th Circuit, was a professor at the Michigan Law School before joining the Michigan Supreme Court. Another former Scalia clerk, she’s known as a reasonable, committed conservative.

Minnesota Supreme Court Justice David Stras, who clerked for Justice Clarence Thomas, taught at the University of Minnesota Law School. Minnesota is in the 8th Circuit. Stras published on uncontroversial topics like law clerks and the certiorari process and senior status for federal judges. He’s conservative, no doubt about it. But not an extremist or an ideologue, as far as that’s possible to determine.

What’s going on here isn’t that Trump is somehow reasonable when it comes to judicial picks. He most likely doesn’t know these people from Adam. They’ve never crossed paths.

Rather, Trump has outsourced judicial selection thus far to elite conservative lawyers like those of the Federalist Society. The society elite likes other elites. They’re known and trustworthy.

They are also less likely to drift to more liberal positions, at least according to conventional wisdom. Being enmeshed in a network of like-minded people tends to reinforce belief and action. Thus, picking such conservative elites is supposed to avoid surprises like Souter and Justice Anthony Kennedy.

Finally, if the goal is to make the appellate courts more conservative, it makes sense to pick smart judges who have high-end legal experience and academic expertise.

Trump hasn’t seemed very interested in picking elites in other policy-making circles. The judiciary is an exception, because it isn’t Trump doing the picking. Liberals can rightly fret about the influence of conservative judge-pickers. But the alternative isn’t no Trump judges. It’s the random-walk process that has gone into choosing executive branch officials.

Faced with those options, I’ll take the conservative legal elites. As Shakespeare advised, perhaps with some irony, “Do as adversaries do in law, strive mightily, but eat and drink as friends.” Maybe law is the only place left in American public life where it’s possible to disagree deeply while still showing respect. These conservatives fit that description.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer or the Bloomberg editorial board or Bloomberg LP and its owners.

Leave a Reply

Your email address will not be published. Required fields are marked *