Former President and current President Elect Donald Trump appointed 234 judges during his first term. Three of these were to the United States Supreme Court. This is quite unique on several levels. Only three presidents, Ronald Reagan, Richard Nixon, and Dwight Eisenhower had three or more confirmed nominees since 1950 (Eisenhower had five in two terms, Reagan had four in two terms, Nixon had four in one). Trump has the ability to reach and surpass this number in a second term. Only six presidents appointed five or more Supreme Court Justices, a majority of the Court at its present size of nine, and two of these were George Washington who appointed the first six justices along with four appointees to replace four of those six justices and Franklin Delano Roosevelt who sat for three presidential terms and died at the beginning of a fourth term (including seven between 1937 and 1941).
* These include confirmations for Chief Justice.
There are several elements that may impact who Trump might nominate to the Supreme Court if another vacancy arises. One of the key factors that influenced the choice of the previous three nominees was recommendations from the Federalist Society. Trump also made relatively safe picks from an ideological standpoint. The only nominee that faced backlash was then-Judge Kavanaugh and that was due to allegations that were unforeseen at the time of the nomination (although something that perhaps would have come to light under increased vetting).
These nominees appeared to be safe picks ideologically since all three were federal appellate judges at the time of their nominations and none had truly contentious decisions that they had to reckon with during their respective confirmation hearings. These motivations along with Trump’s famous lists of potential nominees made for fairly predictable choices, even though Gorsuch was not on the initial list for Trump’s first Supreme Court nomination (here were my predictions prior to the nomination of Gorsuch prior to adding his name to the official list, Kavanaugh, and Barrett).
While there were considerations including potential constraints from the Senate during Trump’s first term, these are unlikely to be major impediments to Trump’s choice of nominees should a vacancy arise this time around. Trump has shown his bravado in this respect with other declarations of nominees prior to his second term that have already stirred significant discussion. With the proverbial gloves off, this may lead to more ideologically polarizing nominees that are more akin to Thomas and Alito than Trump’s previous three nominees. Two other interwoven factors may play roles as well – strategic retirement and the new norm of replacing justices with their former clerks. Three other factors are the norm of elevating federal appeals court judges to the Supreme Court augmented with the possibility of elevating previous Trump nominees to the federal appeals courts to the U.S. Supreme Court and tertiarily the age of the nominee.
Vacancies and Potential Nominees
Part of the consideration of the next potential nominee will come down to which justice is next to vacate the bench. Trump previous nominees include 10 Thomas clerks including Judge Neomi Rao on the D.C. Circuit and Judge James Ho from the Fifth Circuit and three former Alito clerks including Judge Andrew Oldham on the Fifth Circuit. Other dark horse possibilities to round out five potential picks include District Court Judge Aileen Cannon, a Trump appointee to the Southern District of Florida who oversaw and eventually threw out the classified documents case against Trump and Judge Amul Thapar of the Sixth Circuit who previously oversaw the work of J.D. Vance’s wife Usha when he was a District Court Judge for the Eastern District of Kentucky.
A common thread in commentary surrounding President Trump’s choices for non-judicial offices in his second term is that he is less constrained. He will have to have to either convince more moderate Republican senators to vote along the party line or have moderate Democrats side with his picks to muster enough votes for confirmation, but if the contentious nature of choices like Matt Gaetz for Attorney General are not enough to thwart Trump, then the blowback Trump might receive from polarizing judicial nominees may not impact Trump’s decision of who to nominate to these positions either.
Trump will also be working with united government where the House, Senate, and Presidency are controlled by the same party for the second time in his presidency at the outset of his second term. In theory this should lead for an easier route for confirming judicial nominees than under divided government between the President and Senate, but this will also depend on the more moderate senators of both parties.
Ordering of Potential Nominees
There are some commonalities of recent Supreme Court nominees that might factor into the next nomination if Trump is given the opportunity. The first is not only the norm of prior Supreme Court clerkship, but also clerking for the departing justice. After Scalia passed away, Justice Gorsuch was appointed to his seat. Gorsuch was a Kennedy clerk. Then when Justice Kennedy retired, Justice Kavanaugh, another former Kennedy clerk, was appointed to his seat. Since Justice Ginsburg passed away while Trump was in office, the possibility of a Ginsburg clerk filling the seat was off the table and instead Justice Barrett, a former Scalia clerk, filled her spot. Then when Justice Breyer retired, his former clerk, Justice Jackson was nominated to fill his seat.
This adds another layer to the concept of strategic retirement. The general idea behind strategic retirement is that the justices would prefer someone likeminded to replace them, and so they would rather retire under a president of the same party as their appointing president. This has been extended to the idea that justices may be incentivized to retire if a nominee even more like them is selected and who is more like them than a legal mind that they helped mold when they were particularly impressionable, one of their former clerks.
Along with their jurisprudence, the reason why four of the five current judges I think are likely candidates for the next nomination is that they clerked for either Thomas or Alito. Four of the five potential candidates are also currently federal appellate judges. Judge Rao is a judge for the D.C. Circuit which has in past proven the most likely circuit for a judicial selection to the Supreme Court due to the similarity in case types between the two courts thus allowing for a more parallel assessment of how a judge might behave as a Supreme Court Justice.
Since the five potential nominees have clear conservative track records, the D.C. Circuit connection is not likely to greatly impact the choice.
Here are some other factors:
- 20 of the 29 confirmed justices since 1950 went to Ivy League law schools or Stanford including eight of the nine current justices (the exception is Justice Barrett who went to Notre Dame).
- All of the current justices aside from Justice Kagan were federal courts of appeals judges. Prior to Kagan the last justice without a prior federal court judgeship was Justice O’Connor, but unlike Kagan, O’Connor was a state court judge.
- Each of the current justices aside from Sotomayor and Alito clerked at the Supreme Court.
Since Thomas has been on the Court the longest of the justices combined with his age, likely frustration with unwanted attention to his personal life, he seems the more likely of the two justices to strategically retire during Trump’s second term. Alito has also publicly dismissed the possibility of retirement. While a vacancy may arise from another justice, and some point to Justice Sotomayor based mainly on her type I diabetes, she has no plans to resign anytime soon either. These are also the three oldest justices on the Court with Thomas at 76, Alito at 74, and Sotomayor at 70. The average age of departure from the Court since 1950 is 76.1, approximately Thomas’ current age.
To rank the potential nominees on their likelihood of a nomination if a vacancy arises, I place the former Thomas clerks at the top of the list.
Most Likely Nominees’ Profiles in Order of Likelihood of Nomination
#1 Judge Ho
Current Court: Fifth Circuit
Born: Taipei, Taiwan
Ethnicity: Asian American
ABA rating: Well qualified
Federal appeals court confirmation vote: 53-43
Law School: University of Chicago
Clerkships: Jerry Smith (Fifth Circuit), Clarence Thomas (Supreme Court)
Other Governmental Offices: Attorney in the U.S. Department of Justice; Chief counsel, Subcommittee on the Constitution, U.S. Senate Committee on the Judiciary; Chief counsel, Subcommittee on Immigration, U.S. Senate Committee on the Judiciary; Solicitor general, State of Texas.
Judge Ho meets the criteria for unconstrained as he is unabashed in asserting his interpretations in his opinions even if they spur backlash. In a likely unintended result, the liberal press has helped to bolster Judge Ho as the most likely nominee based on the fact that these outlets often confirm he is consistent in his views and those views are often opposed to those held by the public on the left, at least in cases that make headlines.
Judge Ho is the most pronounced advocates of refusing to hire clerks from certain elite schools that have engaged in what he views as cancel culture of conservative speakers or that allow antisemitism and bigotry on campus. Here are some of Judge Ho’s thoughts on the current state of immigration in the United States (interview).
Notable decisions: Dobbs (concurrence)
Alliance for Hippocratic Medicine v. US FDA (concurrence)
Cargill v. Garland (concurring in part; concurring in judgment)
Golden Glow Tanning Salon v. Columbus (concurring)
United States v. Rahimi (concurring)
#2 Judge Rao
Current Court: D.C. Circuit
Born: Detroit, MI
Ethnicity: Asian American
ABA rating: Well qualified
Federal appeals court confirmation vote: 53-46
Law School: University of Chicago
Clerkships: J. Harvie Wilkinson (Fourth Circuit), Clarence Thomas (Supreme Court)
Other Governmental Offices: U.S. Senate Committee on the Judiciary; Associate counsel and special assistant to President George W. Bush
While Judge Rao has not been in the press as much as Judge Ho, she is the second most likely former Thomas clerk to receive the nomination if one arises. Rao has the advantage of sitting on the D.C. Circuit which is the most prevalent feeder of Supreme Court including current Justices Kavanaugh, Roberts, Thomas, and Jackson.
Rao has also received backlash in the press, mainly for her support for President Trump’s agenda. She also received pushback from groups like the National Women’s Center during her nomination to the federal appeals circuit, due to her views on abortion among other things. Judge Rao was picked to fill Justice Kavanaugh’s seat on the D.C. Circuit once he was elevated to the Supreme Court.
Notable decisions: In re Flynn (dissent)
IN RE: FEDERAL BUREAU OF PRISONS’ EXECUTION PROTOCOL CASES (concurring)
IN RE: THE SEARCH OF INFORMATION STORED AT PREMISES CONTROLLED BY TWITTER (respecting denial)
NextEra Energy v. FERC (dissent)
#3 Judge Oldham
Current Court: Fifth Circuit
Born: Richmond, VA
Ethnicity: White
ABA rating: Well qualified
Federal appeals court confirmation vote: 50-49
Law School: Harvard Law School
Clerkships: David Sentelle (D.C. Circuit), Samuel Alito (Supreme Court)
Other Governmental Offices: Attorney-advisor, Office of Legal Counsel, U.S. Department of Justice; Deputy solicitor general, State of Texas
Judge Oldham spoke out against federal prosecutorial power in a show of support for Trump after the recent election. He is the second youngest of the potential nominees and with a strong track record on an appeals circuit he appears well poised for a potential elevation within the judiciary. Oldham was involved with election related litigation while working for the State of Texas including supporting photo ID restrictions.
Oldham also received attention for arguing for strong restrictions on hiring criminals against EEOC guidance in the opposing direction.
Notable decisions: VanDerStock v. Garland (concurring)
United States v. Texas; Abbott (dissenting)
#4 Judge Thapar
Current Court: Sixth Circuit
Born: Detroit, MI
Ethnicity: Asian American
ABA rating: Well qualified
Federal appeals court confirmation vote: 52-44
Law School: U.C. Berkeley (Boalt Hall) School of Law
Clerkships: S. Arthur Spiegel, (USDC SD Ohio), Nathaniel Jones (Sixth Circuit)
Other Governmental Offices: Assistant U.S. attorney, District of Columbia; Assistant U.S. attorney, Southern District of Ohio, 2002-2006; U.S. attorney for the Eastern District of Kentucky, 2006-2007
Judge Thapar is the only judge in the group that sat on both a U.S. District Court (for the Eastern District of Kentucky) and a federal court of appeal. He is the oldest of the potential nominees but with that he has the most pervasive track record which provides a helpful gauge for the president’s advisors to ensure his jurisprudence is predictably in Trump’s preferred positions.
Thapar has been vocal about the need to teach originalism in law schools and suggested doners should halt giving money to schools until schools agree to teach it.
Notable decisions: Meriwether v. Hartop
McClellan v. Midwest Machining (concurring in part and dissenting in part)
Planned Parenthood of Ohio v. Hodges
#5 Judge Cannon
Current Court: USDC Southern District of Florida
Born: Cali, Columbia
Ethnicity: Hispanic / White
ABA rating: Qualified
Federal appeals court confirmation vote: 56-21
Law School: University of Michigan Law School
Clerkships: Steven Colloton (8th Circuit)
Other Governmental Offices: Assistant U.S. attorney, Southern District of Florida
Judge Cannon presided over the classified documents case against Donald Trump. As a Trump appointee, she received additional attention due to her Trump connection and what some saw as too close a nexus between the two. The 11th Circuit vacated portions of her intermediate decisions in the case in 2022. As Trump is one who prizes loyalty, Cannon’s decision making during the trial could place her in good standing with the president-elect which positions her as a longshot dark horse candidate for a nomination if not to the Supreme Court, then to the federal appellate bench.
Notable decision: United States v. Trump
Cannon does not have a lengthy track record of significant cases but there are a few instances that have received some publicity.
Concluding Thoughts
While each of these candidates could fit the mold of a judge Trump would look for if there is a Supreme Court vacancy during his second term, there is also a hierarchy of choices that is beginning to take shape. Judge Ho seems to be frontrunner of this pack because of his opinions on the Fifth Circuit along with his steadfast approach to writing decisions that seem to foreshadow views that would make him a strong candidate for a nomination. This along with his prior Thomas clerkship foreshadow a potential justice that is more akin to Thomas and Alito than Trump’s previous three nominees.
A Supreme Court vacancy is by no means assured in the next four years and there are actually quite strong reasons to suppose there will not be one. As the oldest on the Court, Thomas is still quite young by recent retirement standards. Kennedy retired at 82, Breyer at 83, and Stevens at 90. If Thomas (or Alito) is anything like them, then he has at least one more presidential term to go before thinking about retirement.
* Data supplemented with the Supreme Court Justices Database and the Federal Judicial Center’s data on federal judges.
** Another metric of comparison, the Judicial Common Space which uses the appointing president and home state senators’ ideal points as a proxy for the judge’s predicted voting behavior ranks Judges Ho and Oldham as the most conservative followed closely behind by Judge Cannon (through a bridged measure) and Judge Thapar. Rao ranks as the least conservative by a substantial margin. Since this disparity does not seem to reflect the judges’ decisions, I chose not to include a substantial discussion of it in this post.
Find Adam on X/Twitter and LinkedIn. He’s also on Bluesky Social @dradamfeldman.bksy.social
Empirical SCOTUS 
This an interesting article, but I am hard pressed to hard to understand how Professor Feldman overlooked Dwight Eisenhower and his 5 post-1950 appointment, a group that all but revolutionized the Court, in his opening comments.
LikeLike
Fixed. The timeline was the issue (both in my head and on paper). Of course he had more than three picks including Warren. Thanks for the note.
LikeLike