Who Should Donald Trump Choose For the Supreme Court Next?

U.S. President Donald Trump greets Supreme Court Chief Justice John Roberts as he arrives to deliver his State of the Union address to a joint session of the U.S. Congress in the House Chamber of the U.S. Capitol in Washington, U.S. February 4, 2020. REUT
August 18, 2020 Topic: Politics Region: Americas Blog Brand: The Reboot Tags: Donald TrumpSupreme CourtJudgesMike LeeHeritage Foundation

Who Should Donald Trump Choose For the Supreme Court Next?

Here's fourteen good picks.

Unafraid to go it alone, Bibas notably dissented in Association of New Jersey Rifle & Pistol Clubs v. Attorney General of New Jersey (2018), and rebuked his colleagues in the majority who upheld New Jersey’s ban on high capacity magazines. He wrote:

The Second Amendment is an equal part of the Bill of Rights.  We must treat the right to keep and bear arms like other enumerated rights, as the Supreme Court insisted in Heller.  We may not water it down and balance it away based on our own sense of wise policy.

That’s great judging, showing respect for the proper role of the judiciary in our tripartite system of government. 

And just in case anyone is confused about Bibas’ view on the proper role of a judge in our society, he made it clear in an interview last September with The Wall Street Journal, saying that “My boss is not the chief judge.  My boss is not my appointing president.  My boss is the Constitution and the laws.” 

For a nation governed by the rule of law, that’s what you want to hear from a judge—and a Supreme Court justice.

You may listen to an interview with Bibas on “SCOTUS 101” here.

Stuart Kyle Duncan

Judge, U.S. Court of Appeals for the 5th Circuit

Age: 48

Education: Louisiana State University (B.A.); Louisiana State University (J.D.); Columbia University School of Law (LL.M.).

Clerkship: John M. Duhe, Jr. (5th Circuit)

Before his confirmation to the 5th Circuit in 2018, Judge Kyle Duncan practiced law at several large firms and then as an assistant solicitor general for the state of Texas. He went to work for four years as an assistant professor of law at the University of Mississippi School of Law, where his scholarship focused on the Constitution, specifically the First Amendment’s religion and free speech clauses. 

Duncan then served for several years as the first appellate chief of the Louisiana Department of Justice (the precursor to the state’s solicitor general position) before joining the Becket Fund for Religious Liberty as their general counsel, where he coordinated litigation strategy for a variety of high profile religious liberty cases, including the Hobby Lobby(2014) case. After his successful stint at Becket, he returned to private practice before Trump nominated him to the bench.

Duncan has argued two cases before the Supreme Court and has briefed many more. Since taking the bench, Duncan has written several thoughtful opinions demonstrating his adherence to originalism and textualism.

In U.S. v. McGinnis (2020), Duncan wrote the majority opinion upholding a firearms regulation based on 5th Circuit precedent, but he took the unusual step of drafting a separate concurring opinion urging his fellow judges and the Supreme Court to “retire” a tiers-of-scrutiny framework for evaluating  Second Amendment cases, which he called (quoting Justice Clarence Thomas) “increasingly a meaningless formalism,” and to adopt “an approach focused on the Second Amendment’s text and history.” 

In the case In re Abbott also this year, Duncan wrote the majority opinion declining to create an exception for abortions in an executive order postponing nonessential surgeries and procedures for a limited period of time during the current pandemic. And in Southwestern Electric Power Co. v. EPA (2019), in an opinion joined by Judge James C. Ho, Duncan engaged in a thorough textual analysis in striking down part of the EPA’s wastewater rule.

You may listen to an interview with Duncan on “SCOTUS 101” here.

James C. Ho

Judge, U.S. Court of Appeals for the 5th Circuit

Age: 47

Education: Stanford University (B.A.), University of Chicago Law School (J.D.)

Clerkships: Jerry Smith (5th Circuit); Clarence Thomas (Supreme Court)

Originally born in Taiwan, Judge James C. Ho emigrated to the United States with his parents when he was a toddler.  In addition to his clerkships, Ho spent time at the Department of Justice in both the Office of Legal Counsel and the Civil Rights Division, practiced at a white-shoe law firm, and immediately followed now-Sen. Ted Cruz as Texas’ solicitor general.

Since his confirmation to the 5th Circuit in 2017, Ho has made a splash with several high-profile, principled dissents and concurrences setting forth his views. 

In a concurrence in Whole Woman’s Health v. Smith (2018), upholding a Texas law requiring cremation or burial of fetal remains rather than disposal in a landfill or sewer, Ho wrote:

It is hard to imagine a better example of how far we have strayed from the text and original understanding of the Constitution than this case.  The First Amendment expressly guarantees the free exercise of religion—including the right of the Bishops to express their profound objection to the moral tragedy of abortion, by offering free burial services of fetal remains. By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains.

In a biting dissent (joined by Judges Don Willett and Kyle Duncan) from a denial of rehearing en banc in Mance v. Sessions(a 2018 case where a three-judge panel upheld the federal government’s ban on the interstate sale of handguns), Ho said: “The Second Amendment guarantees the right of the people to keep and bear arms. …  Yet the Second Amendment continues to be treated as a ‘second-class’ right—as at least three Justices have noted in recent years.”

He went on to say: “Law-abiding Americans should not be conflated with dangerous criminals.  Constitutional rights must not give way to hoplophobia”—or the fear of firearms.

Ho also dissented from a denial of rehearing en banc in Zimmerman v. City of Austin (2018), a case involving free speech and campaign contributions where a three-judge panel of the court upheld Austin’s municipal contribution limits for city council candidates.

Ho wrote: “The unfortunate trend in modern constitutional law is not only to create rights that appear nowhere in the Constitution, but also to disfavor rights expressly enumerated by our Founders.  . . . This case reinforces this regrettable pattern.”

And in a concurrence earlier this year in Texas Democratic Party v. Abbott, in which the court reversed a lower court order that the state of Texas had to—on the basis that the Constitution required it—provide mail-in ballots to all eligible voters who wanted one, Ho wrote: “We do not suspend the Constitution during a pandemic. … Even—indeed, especially—in times of strife, fidelity to our Constitution must endure and guide us through the crises.” 

He emphasized the state’s strong interest in maintaining the integrity of its elections and wrote:

The right to vote is fundamental to our constitutional democracy.  But it means nothing if your vote doesn’t count. And it won’t count if it’s canceled by a fraudulent vote—as the Supreme Court has made clear in case after case.

You may listen to an interview with Ho on “SCOTUS 101” here.

Andrew S. Oldham

Judge, U.S. Court of Appeals for the 5th Circuit

Age: 41

Education: University of Virginia (B.A.), University of Cambridge (M. Phil.), Harvard Law School (J.D.)

Clerkships: David B. Sentelle (D.C. Circuit); Samuel A. Alito Jr. (Supreme Court)

Prior to joining the 5th Circuit in 2018, Judge Andrew Oldham worked in private practice, as a lawyer in the Justice Department’s Office of Legal Counsel, as deputy solicitor general for Texas, deputy general counsel to Texas Gov. Greg Abbott, and ultimately as the governor’s general counsel immediately before taking his seat on the federal bench.

On the bench, Oldham has done yeoman’s work tackling a variety of legal issues from challenges to administrative actions, review of administrative appeals, and appeals from a host of district court decisions. 

In Collins v. Mnuchin (2019), a case where, among other claims, the director of the Federal Housing Finance Agency was alleged to have acted outside the scope of his statutory authority and the agency was alleged to be unconstitutionally structured in violation of separation of powers, Oldham (joined by Ho) wrote separately to concur in part and dissent in part from the majority opinion, emphasizing: “The Constitution vests in the President the power to remove executive officers.  Any intimation to the contrary must be rejected.” 

Oldham and Ho also rejected their colleagues’ attempt to “blue-pencil the statute by [merely] deleting the unconstitutional statutory provision.” 

And in Langley v. Prince (2019), Oldham wrote the majority opinion (joined by Judges Willett, Ho, and Duncan) for the entire 5th Circuit, in which he provided a thorough analysis of the historical roots and development of the Double Jeopardy Clause, as well as the Antiterrorism and Effective Death Penalty Act, in denying habeas corpus relief to a child murderer. 

In another case, Oldham reiterated a time-tested quote to show his views on statutory interpretation when he said:  “In statutory interpretation we have three obligations: ‘(1) Read the statute; (2) read the statute; (3) read the statute!’” And he has done just that in a wide range of cases dealing with everything from immigration-related issues to false claims acts cases.

Oldham speaks regularly to groups of lawyers and students on a variety of legal issues, but especially those related to constitutional structure, interpretation, and the rule of law.