Whom Should Trump Put on the Supreme Court?

The former/maybe future president keeps promising a new list. Whether he releases one or not, these are the people he should consider for the next high court vacancy.

When Justice Antonin Scalia died in February 2016, it was another remarkable twist in that year’s presidential election. Although President Obama quickly nominated Merrick Garland (now attorney general), Senate Republicans declined to take up the nomination, with Majority Leader Mitch McConnell holding fast to the position that the next president should get to fill the seat.

But could Donald Trump be trusted to appoint someone good, someone dependable, someone who wouldn’t burn conservatives like so many had in the past? Breaking with precedent, presumptive nominee Trump released a list of 11 potential justices in May 2016. Typically, it’s inadvisable for a presidential candidate to float names for judicial or executive appointment, because those people would then be targeted by the other party (and, if Republican, by the media). But Trump realized he had to reassure voters—both the GOP base and right-leaning independents—that he would pick from the conservative legal movement’s strong stable of Federalist Society-affiliated judges, rather than doing something crazy like appointing his (left-leaning) sister or Rudy Giuliani or Judge Judy.

Trump then added another 10 names in September 2016—one of whom was Neil Gorsuch, his eventual pick for that Scalia seat. The strategy, and Leader McConnell’s political hardball, worked. Not only did the Garland blockade not hurt vulnerable senators running for reelection, but the vacancy held Republicans together and provided Trump’s winning margin in key states. Trump then added five more names in November 2017, two of whom were Brett Kavanaugh and Amy Coney Barrett, who of course became Trump’s picks for the next two Supreme Court vacancies.

Feeling the need to reorient the political narrative in a tight reelection campaign—judicial nominations have generally been a winning issue for Republicans, not just in 2016—Trump issued another list of 20 candidates in September 2020. Unlike the previous lists, this one included executive branch officials, senators, and even one state official (then-Kentucky attorney general Daniel Cameron). It’s unclear what effect this move had on the election, which of course took place in unusual circumstances during the pandemic. Joe Biden won by a small but clear margin in a handful of swing states by campaigning on a return to normalcy. Although the only mandate he had was to “not be Trump,” which of course he fulfilled on Inauguration Day, Biden quickly overreached with a combination of incompetence and left-wing hubris.

So we were back to an electorate seeking normalcy—but Manhattan DA Alvin Bragg’s indictment of Trump on ridiculous charges in spring 2023 short-circuited the Republican primary and effectively sealed the former president’s renomination (as well as painting the less-ridiculous charges in other courts as part as one big partisan lawfare campaign). Trump repeatedly promised to issue a new list of Supreme Court potentials, and challenged Biden to do the same. Then of course Trump TKO’d Biden in their June debate and Biden went on permanent vacation. (Which should be a bigger story as the world spirals out of control, but I digress and this isn’t a post on general political commentary.)

Has Kamala Harris’s replacement of Biden on the Democratic ticket changed the calculus for Trump and his SCOTUS list? I’d argue that it’s only strengthened the incentive for him to release one, to heighten the contrast to Harris’s policy-free campaign and increase the focus on her pledge to pack the Court—meaning expand it/force retirements for political reasons—and otherwise remove any checks on her would-be rule. If he does, here’s who should be on that list.