Trump’s Next Supreme Court Pick Could Be One of These Four Judges

“Judges are the most successful policy initiative of President Trump’s first term,” said Rob Luther, a law professor at George Mason University who worked on judicial nominations during the first Trump administration.

And President-elect Donald Trump’s most consequential transformation was that of the US Supreme Court during his first term. By appointing Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, he established a 6-3, conservative supermajority that moved the court significantly to the right.

It’s unlikely that Trump in his second term will have anywhere near the same impact on the court—because it’s already so conservative, and none of the three liberal justices would willingly give Trump a vacancy. But if Justices Clarence Thomas, 76, and Samuel Alito, 74, were to step down, Trump could replace them with like-minded but much younger jurists—possibly cementing conservative domination of the court for another generation.

With Republicans holding 53 seats in the next Senate, Trump could lose three GOP votes, including relative moderates like Senators Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), and still get his choice confirmed. This would give him the leeway to appoint a quite conservative nominee, as long as the pick is well-qualified.

A high-profile judge on a federal appeals court—the profile of eight out of the nine current justices—would most likely pass muster with the Senate. And this would still leave Trump with plenty of options: He appointed more than 50 judges to the circuit courts, and as a recent study by law professors Stephen Choi and Mitu Gulati concluded, many Trump appointees are productive, influential, and intellectually independent jurists.

The specific nominee would turn in part on the justice being replaced. As highly political events, Supreme Court confirmation battles include a strong public-relations component. The president must win over both senators and the general public with a compelling narrative in support of the nominee—a narrative that often turns on factors beyond paper credentials.

For example, after Justice Ruth Bader Ginsburg passed away, Trump announced that he would most likely pick a female nominee to replace Ginsburg, a crusader for gender equality who was only the second woman to serve on the court—which he ultimately did, selecting Barrett.

It can also be helpful to replace a justice with one of their former clerks, adding a human-interest, “passing of the torch” aspect to the narrative—which might have contributed to the selections of Justices Brett Kavanaugh and Ketanji Brown Jackson to replace Justices Anthony Kennedy and Stephen Breyer, for whom they previously clerked.

If Thomas were to step down, two strong contenders for his seat would be Sixth Circuit Judge Amul Thapar, 55, or Fifth Circuit Judge James Ho, 51. Both prominent and popular jurists in conservative circles, either would become, if confirmed, the first Asian American justice—a positive when trying to confirm a successor for only the second Black justice in the court’s history. And both have additional advantages as potential Thomas replacements: Ho clerked for Thomas, while Thapar wrote a book praising Thomas and his jurisprudence.

If Alito were to retire, a leading candidate to succeed him would be Fifth Circuit Judge Andrew Oldham, 45. He clerked for Alito on the high court, and his jurisprudence is Alito-esque.

In a well-known case, NetChoice, LLC v. Paxton, he wrote an opinion upholding the constitutionality of HB 20, a controversial Texas law regulating the ability of social-media platforms to moderate content.

The Supreme Court vacated his decision, with Justice Elena Kagan writing a majority opinion criticizing Oldham’s ruling—and Alito authoring a concurrence in the judgment that criticized Kagan’s criticism.

At last month’s National Lawyers Convention of the Federalist Society—which played a crucial role in picking judicial nominees in Trump’s first term, but whose involvement in his second term is uncertain—Supreme Court nominations were a leading topic of conversation. Among the attendees I spoke with, Thapar, Ho, and Oldham consistently came up as possible high-court picks.

And the buzz around them isn’t confined to conservative legal circles. From the Kalshi prediction market to Adam Feldman’s data-driven Empirical SCOTUS website to legacy media outlets like CNN, they lead the pack.

On the “Advisory Opinions” podcast, the extremely well-connected Sarah Isgur also highlighted the trio of Thapar, Ho, and Oldham. But she added to the mix a dark horse candidate, Ninth Circuit Judge Patrick Bumatay, 46—whom I identified more than two years ago, on the “Short Circuit” podcast, as a high-court contender.

Bumatay’s full-throated originalism draws heavily on Thomas’ jurisprudence. And Bumatay would be a historic pick not just as the first Asian American justice, but as the first openly gay justice.

Although Trump’s first three Supreme Court nominees were fairly predictable picks who could have come out of any Republican administration, the president-elect enjoys surprising people. Some might recall this from his reality-TV-style reveals of Gorsuch in 2017 and Kavanaugh in 2018.

If Trump wants to mix things up by looking beyond these four frontrunners, a longer shortlist might include Judges Neomi Rao of the D.C. Circuit, Steven Menashi of the Second Circuit, Kyle Duncan of the Fifth Circuit, and Lawrence VanDyke of the Ninth Circuit, as well as former US solicitor general Noel Francisco and former Texas solicitor general Jonathan Mitchell.

Regardless of Trump’s ultimate pick—assuming he even gets another vacancy to fill—the bottom line is this: When it comes to possible high-court nominees who are both conservative and confirmable, he enjoys an embarrassment of riches. Those on the right should be excited, and those on the left should be afraid—very afraid.

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”

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