In another case, Newsom reinforced that the role of a judge is to stay true to the text of a statute even if he, as a policy maker, would have written the law differently. Faithfully applying the text of the statute in that case led to what Newsom later called a “suboptimal” outcome.
“For better or worse,” Newsom wrote, “that’s simply the result that, on our reading, the law requires.”
Newsom has followed the law even when he profoundly disagreed with it. In Kondrat’yev v. City of Pensacola (2018), Newsom joined a per curiam decision in which the court held that, based on 11th Circuit and Supreme Court precedents, the famous Pensacola Cross—which has stood since 1941—had to be removed.
Newsom wrote a separate opinion indicating the he “reluctantly” concurred in the decision, explaining that these circuit and Supreme Court precedents, both as to the plaintiffs’ standing to file suit as well as the merits of the underlying Establishment Clause question, were wrong, but that he believed it was his duty to follow them.
Stating his view that “the Supreme Court’s Establishment Clause jurisprudent is a wreck,” Newsom surveyed Founding-era documents and articulated the original understanding of the Establishment Clause, urging the Supreme Court to adopt an interpretation that was aligned with that historical understanding.
A year later, the Supreme Court took a step in that direction in a similar case, and instructed the 11th Circuit to reconsider the Pensacola Cross case. In what only can be described as a clear vindication, Newsom authored the second Pensacola Cross opinion in 2020 that allowed the cross to stay.
You may listen to an interview with Newsom on “SCOTUS 101” here.
Other Names to Consider
And now, here are the names of some highly qualified individuals whom the president ought to consider adding to his list.
Judge, U.S. Court of Appeals for the D.C. Circuit
Education: Princeton University (AB), Harvard Law School (J.D.)
Clerkships: Edward Roy Becker (3rd Circuit), Clarence Thomas (D.C. Circuit and Supreme Court)
Before joining the D.C. Circuit in 2017, Judge Gregory Katsas spent several years in private practice at Jones Day; he spent the entire Bush administration in senior positions at the Department of Justice, including as assistant attorney general for the Civil Division and as acting associate attorney general, earning awards for his service. Immediately before his judicial appointment, Katsas served as one of four deputy White House counsels for the Trump administration.
Katsas has tackled difficult issues head on while a judge on the D.C. Circuit, often considered to be the preeminent federal appeals court (second only behind the Supreme Court) because of the many important constitutional and administrative law cases it hears.
He followed a straightforward “textual analysis” to conclude that the Food and Drug Administration acted arbitrarily and capriciously by “declining even to consider” the very factor required by statute when adopting its regulations requiring extensive health warnings on packaging and in advertising for cigars and pipe tobacco.
Similarly, when several federal death-row inmates challenged the Bureau of Prisons’ execution Bureau of Prisons’ execution protocol, Katsas engaged in textual analysis (as did Judge Neomi Rao) of the requirements of the Federal Death Penalty Act of 1994 and sought to determine what “a reasonably informed English speaker would have known” when the relevant statute was enacted.
Katsas has given speeches, made comments, or participated in debates or panel discussions at events sponsored by leading conservative organizations, including the Federalist Society, The Heritage Foundation, Pacific Legal Foundation, and Washington Legal Foundation, and at law schools and bar associations across the country.
It is rumored that Katsas helped lead the effort to craft a powerful letter expressing “deep concern” over a draft advisory opinion from the Judicial Conference’s Code of Conduct Committee. That opinion concluded that the Code of Conduct prohibited membership in the Federalist Society or the American Constitution Society, but not in the American Bar Association.
The letter stated that this opinion actually “conflicts with the Code of Conduct, misunderstands the Federalist Society, applies a double standard, and leads to troubling consequences.” The letter highlights the fact that, while the Federalist Society never has taken a public position on any political issue or filed a single amicus brief, the American Bar Association has been doing both for decades.
More than 200 federal judges have signed the letter. And in a vindication for Katsas and the other signers, the Judicial Conference recently abandoned this effort.
You may listen to an interview with Katsas on “SCOTUS 101” here.
Judge, U.S. Court of Appeals for the District of Columbia
Education: Yale University (BA), University of Chicago Law School (JD)
Clerkships: J. Harvie Wilkinson (4th Circuit); Clarence Thomas (Supreme Court)
Prior to her confirmation to the D.C. Circuit in 2019, Judge Neomi Rao served in many important positions and demonstrated an ability to tackle tough issues in meaningful and thoughtful ways. In addition to her clerkships and a stint in private practice, she served as a counsel for nominations and constitutional law for the Senate Judiciary Committee and in the White House Counsel’s Office under President George W. Bush.
Rao’s career path ultimately led her into academia, where she became a professor at George Mason’s Antonin Scalia Law School and founded the Center for the Study of the Administrative State. Her strong background in administrative law and ideas for reforming the administrative state prompted Trump to appoint her as the administrator of the Office of Information and Regulatory Affairs, an agency within the Office of Management and Budget charged with reviewing regulations promulgated by government agencies.
Rao is a prolific author, writing op-eds and law reviews on many issues, with a primary focus on administrative law and the importance of maintaining the separation of powers in our system of government.
Since taking the bench, Rao has been part of several high-profile cases, including ones over Congress’s ability to subpoena Trump’s financial records (in which she raised separation-of-powers issues that were discussed at length by the Supreme Court), and the request by the Justice Department to dismiss its charges against Gen. Michael Flynn, a case that is being reviewed by the entire D.C. Circuit.
In these cases and others, even when Rao’s colleagues have disagreed with her, they have recognized that her opinions are thoughtful and well-reasoned. In one opinion where there was broad disagreement over the applicability of a federal statute to federal execution protocols, one of her colleagues (a Clinton appointee) who partially disagreed with her went out of his way in his own opinion to compliment her.
He wrote: “I agree with Judge Rao that the term ‘manner’ refers to more than just general execution method. Because her detailed opinion so thoroughly addresses the government’s arguments and convincingly responds to Judge Katsas’s survey for the historical record, I see no need to say anything more on the issue.”
That’s high praise. And exactly what we want from a judge—and Supreme Court justice: well-reasoned opinions that others, even when they disagree with the conclusions, understand to be thorough, thought-out, and based on the law rather than the judge’s own political proclivities.
Judge, U.S. Court of Appeals for the 3rd Circuit
Education: Columbia University (B.A.), University of Oxford (B.A.), Yale Law School (J.D.)
Clerkships: Patrick E. Higginbotham (5th Circuit); Anthony Kennedy (Supreme Court)
Since his confirmation to the 3rd Circuit in 2017, Judge Stephanos Bibas quickly has earned plaudits for his incisive writing style, “becoming one of the best writers on the federal bench,” according to legal writing adviser Ross Guberman.
This is unsurprising, given Bibas’ extensive research and writing while a law professor at the University of Pennsylvania and the University of Iowa, where he gained a reputation as a leading criminal law scholar whom judges frequently cited in their own opinions.
At one point, Bibas was the 15th most- cited scholar in judicial opinions and was the fifth most-cited criminal law and procedure scholar.
Bibas also has the practical experience to back up his scholarly bona fides. After his clerkships, he served for several years as a federal prosecutor where he “regularly appeared in court for everything from arraignments and bail hearings to guilty pleas to sentencing hearings, as well as occasional special proceedings such as extraditions.”
After transitioning to academia and settling at the University of Pennsylvania, Bibas helped to found, and served as director for, the school’s Supreme Court clinic—where he “orally argued six cases and filed more than ninety briefs in more than fifty cases before the Supreme Court of the United States.” Most of those cases were on behalf of individuals who otherwise could not have afforded experienced Supreme Court counsel.
On the bench, Bibas has continued to excel. In addition to being stylistically pleasing, his opinions are analytically sound, demonstrating his commitment to the rule of law through his textualist and originalist approach to cases, an approach that has served him well and established him as a strong defender of Second Amendment rights.