President Donald Trump recently announced that by Sept. 1 he would release “a new list” of conservative Supreme Court nominees, “which may include some, or many of those already on the list.”
If presented with the opportunity to nominate someone to fill a vacancy on the high court, Trump added, he would “only choose” from this new list.”
Some have suggested that the president should prune his current list and not add any new names, while the long knives are out for other short-listers (see, for example, here) as the jockeying begins in earnest.
Shortly after the sudden passing of Justice Antonin Scalia, one of us (John Malcolm) wrote a commentary titled “The Next Supreme Court Justice” offering a nonexclusive list of eight qualified candidates who represented “the kind of highly qualified, principled individuals the new president [who turned out to be Trump] should consider—after a thorough review of their backgrounds, records, legal acumen, judicial philosophies, and intestinal fortitude—for nomination to the Supreme Court.”
These potential nominees included then-Judge Brett Kavanaugh (now on the Supreme Court), Judge Bill Pryor, Judge Diane Sykes, Judge Raymond Gruender, Judge Steve Colloton, Judge Don Willett, Sen. Mike Lee, R-Utah, and Paul Clement.
President Trump was kind enough to credit The Heritage Foundation, among others, with helping to inform his thinking on who to include on his own list.
John Malcolm stands by the names on his original list, although, sadly, the moment may have passed for a couple of them. He also stands by the one name that did not make it on to the president’s consolidated list—Clement—and we hope the president adds him to the updated list.
Many of the names on the president’s current list are outstanding, and they deserve to remain on the list. Here are a few of these outstanding individuals whose credentials look, if anything, even better now than when they were first put on the list.
With respect to the names below, we begin with the U.S. Court of Appeals for the District of Columbia Circuit, followed by the other circuits in numerical order. For circuits with multiple candidates for the high court, we have listed them alphabetically.
Tom Hardiman
Judge, U.S. Court of Appeals for the 3rd Circuit (Pennsylvania)
Age: 55
Education: University of Notre Dame; Georgetown University Law Center
Clerkships: None
Judge Tom Hardiman was widely reported to be a finalist for the vacancies that ultimately were filled by Neil Gorsuch and Brett Kavanaugh. In addition to a solid record of judicial service, Hardiman has a compelling personal story—he was the first in his family to graduate from college and he drove a taxi to support himself during college and law school.
Before becoming a judge, Hardiman worked in private practice at prestigious law firms in Pittsburgh and Washington, D.C. While in private practice, he represented (on a pro bono basis) and successfully defended Allegheny County, Pennsylvania, against a lawsuit filed by a group of atheists who objected to the county’s display of a Ten Commandments plaque on the side of the county courthouse.
In his 17 years on the bench (three of them on the district court), Hardiman has written over 800 opinions, including noteworthy ones dealing with the Second Amendment, prisoner’s rights, and religious freedom.
In Drake v. Filko (2013), Hardiman dissented from the court’s ruling upholding a New Jersey law requiring those seeking a permit to carry a handgun to demonstrate a “justifiable need.” He argued that under the Supreme Court’s 2008 opinion in District of Columbia v. Heller, the Second Amendment extends beyond the home and encompasses an inherent right to self-defense.
Hardiman’s opinion in this case was cited recently by Justice Clarence Thomas in his dissent from denial of certiorari in Rogers v. Grewal (2020). Hardiman has expressed strong views on the Second Amendment in other cases too (see here).
Regarding religious liberty, Hardiman dissented in Busch v. Marple Newtown School District (2009), arguing that an evangelical Christian mother should not have been denied the opportunity to read from the Bible during a show-and-tell session at her child’s kindergarten.
And last year, in Northeast Pennsylvania Freethought v. County of Lackawanna, Hardiman wrote the majority opinion in this important First Amendment case, concluding that a transit system policy of excluding religious messages constitutes unconstitutional viewpoint discrimination, and expressing disagreement with a D.C. Circuit opinion reaching the opposite result in a similar case.
Citing the Declaration of Independence, Hardiman stated:
Religion is not only a subject. It’s a worldview through which believers see countless issues. It was so for our Nation’s founders, whose moral thesis changed the world and conceived a new birth of freedom in the United States: ‘that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’
Also last year, the Supreme Court affirmed an en banc decision that Hardiman wrote in Rotkiske v. Klemm, a case involving the Fair Debt Collection Practices Act. And this year, in U.S. v. Thuraissigiam, Justice Samuel Alito cited with approval Hardiman’s separate opinion in Castro v. United States Dep’t of Homeland Sec. (2016).
You may listen to an interview with Hardiman on the podcast “SCOTUS 101” here.
Raymond Kethledge
Judge, U.S. Court of Appeals for the 6th Circuit (Michigan)
Age: 53
Education: University of Michigan; University of Michigan Law School
Clerkships: Ralph Guy Jr. (6th Circuit); Anthony Kennedy (Supreme Court)
Prior to joining the bench, Judge Raymond Kethledge served as counsel to then-Sen. Spencer Abraham, R-Mich., on the Senate Judiciary Committee and spent several years in private practice and as in-house counsel at Ford Motor Co.
After President George W. Bush nominated Kethledge to the 6th Circuit in 2006, his confirmation was delayed for nearly two years while both of Michigan’s Democratic senators pressed Bush to nominate their preferred candidate to fill a second vacancy on that court. After Bush agreed, the Senate confirmed Kethledge in 2008 by a voice vote without opposition.
During his time on the bench, Kethledge has garnered attention for his excellent writing ability and his commitment to textualism, as demonstrated by his opinions in everything from auto insurance cases to criminal sentencing cases.
Kethledge hasn’t hesitated to call out government agencies and officials, such as the IRS and Department of Justice, the Department of Labor, and the Equal Employment Opportunity Commission, for violating citizens’ rights or advancing absurd arguments. In the Labor Department case, which involved a church and its parishioners, he said:
What is perhaps most troubling about the Department’s position in this case, however, is the conceit of unlimited agency power that lies behind it. The power of a federal agency is no more than worldly. The Department should tend to what is Caesar’s, and leave the rest alone.
To that end, Kethledge has been a critic of the much-maligned Chevrondoctrine from both the bench and elsewhere. In a Vanderbilt Law Review article, he also rejected reliance on legislative history and stated that a judge’s role in both statutory and constitutional interpretation is to apply “the meaning that the citizens bound by the law would have ascribed to it at the time it was approved.”
Although Kethledge has written many notable opinions, he also has made clear his outlook on life and judicial philosophy elsewhere. In 2017, he co-authored a book on leadership encouraging those faced with tough decisions to act with clarity and conviction even in the face of strong criticism.
That’s exactly what’s required of any judge, but especially a Supreme Court Justice: Faithfully applying the law as written to any given case, even in the face of strong criticism. Kethledge repeatedly has shown he is up to the task.
Amul Thapar
Judge, U.S. Court of Appeals for the 6th Circuit (Michigan)
Age: 51
Education: Boston College; University of California, Berkeley Law
Clerkships: Arthur Spiegel (Southern District of Ohio); Nathaniel Jones (6th Circuit)
Judge Amul Thapar was Trump’s second judicial nominee following his appointment of Neil Gorsuch to the Supreme Court. Thapar has close ties to Senate Majority Leader Mitch McConnell, R-Ky., and is rumored to have been interviewed by Trump for the Supreme Court seats that ultimately went to Gorsuch and Kavanaugh.
Before joining the 6th Circuit, Thapar was no stranger to the courtroom, having spent nearly a decade as a district court judge, serving as an assistant U.S. attorney in both the District of Columbia and Ohio, and serving as U.S. attorney for the Eastern District of Kentucky. He also worked in private practice and served as general counsel for a company.
Thapar is a committed originalist. He taught a class at the University of Virginia Law School on “Originalism in Theory and Practice: Justices Scalia and Thomas” and published an article in the Yale Law Journal (“Fidelity & Construction”), in which he and his co-author wrote: “Judges take an oath to uphold the Constitution, not to satisfy commentators.”
Thapar echoed this view in a speech delivered at a Heritage Foundation-sponsored symposium that subsequently was re-printed in the Catholic University Law Review (“Smith, Scalia, and Originalism”) in which he said that “the line dividing courts and legislatures must be grounded in the original public meaning of the specific text of the Constitution.” Thapar’s commitment to originalism is also evident in many of his opinions (see here and here).
He is a committed textualist as well. In a 2018 Michigan Law Review article, Thapar and another author reviewed a book by former 7th Circuit Judge Richard Posner in which Posner recommends abandoning a formalist approach in which judges rely on historical meaning, established interpretive tools, and precedent in favor of a more consequentialist, overtly outcome-driven approach.
Thapar offered a robust defense of textualism, arguing that Posner’s approach would prove unworkable and unpredictable and would turn judges into policymakers, thereby violating separation of powers. His commitment to textualism and skepticism of the administrative state also are evident in his opinions (see here, here, here, here, and here).
He has been involved in a couple of abortion-related cases (see here and here), and has written articles and been involved in cases (see here, here, here, and here) involving religious liberty. These include the Catholic University Law Review article in which Thapar suggested that Employment Division v. Smith, an opinion heavily criticized by religious adherents as limiting the Free Exercise Clause, was decided wrongly on originalist grounds.
You may listen to an interview with Thapar on the “SCOTUS 101” podcast here.
Amy Coney Barrett
Judge, U.S. Court of Appeals for the 7th Circuit (Indiana)
Age: 48
Education: Rhodes College; Notre Dame Law School
Clerkships: Laurence Silberman (D.C. Circuit); Antonin Scalia (Supreme Court)
Although most of her career has been spent in academia following her clerkships, Judge Amy Coney Barrett spent a year in private practice, where she was part of the team that represented George W. Bush in Bush v. Gore.
Barrett briefly taught at George Washington University and the University of Virginia before joining the Notre Dame Law faculty in 2002. She also served on the Advisory Committee on the Federal Rules of Appellate Procedure for six years.
Barrett has published in leading law reviews across the country on a variety of topics, and these articles, along with her speeches and judicial opinions, offer insights into her views about the role of the judiciary and the practical work of judges.
In a 1998 article she co-authored, for example, Barrett looked at the “cultural collision” that can occur when a Catholic judge handles a death penalty case, potentially pitting her church’s teaching against her judicial responsibility. The solution, she wrote, is “the recusal of judges whose convictions keep them from doing their job.”
Asked about this article at her Senate confirmation hearing, Barrett responded that if there were an irreconcilable conflict between the law and her personal beliefs, “I would recuse. I would never impose my own personal convictions upon the law.”
In a 2018 speech, Barrett stated that, properly understood, originalism does not involve trying to “think your way into the minds of the Framers.” Rather, she said, it is a recognition that “The text of the Constitution controls, so the meaning of the words at the time they were ratified is the same as their meaning today.”
And in a 2010 article, Barrett explained that the “bedrock principle of textualism … is its insistence that federal courts cannot contradict the plain language of a statute, whether in the service of legislative intention or in the exercise of a judicial power to render the law more just. … There is no excuse for departing from the plain text of a constitutional statute.”
Barrett has extensively explored an issue that has come to dominate the appointment process for Supreme Court nominees: stare decisis, or adherence to precedent.
In a 2003 article, she argued that a rigid or inflexible adherence to precedent actually may deprive litigants of a full opportunity to present the merits of their claims. Stare decisis, Barrett wrote, must be “flexible in fact, not just in theory.”
And in a 2013 article, Barrett examined what she called the “weak presumption” that the Supreme Court should follow its precedents that interpret the Constitution, endorsing the view that “a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she clearly thinks is in conflict with it.”
Her opinions on the 7th Circuit demonstrate that Barrett is a judge who pays close attention to the factual record in each case and takes seriously the limited role of a federal appellate court (see here, here, and here).
You may listen to an interview with Barrett on “SCOTUS 101” here.
David Stras
Judge, U.S. Court of Appeals for the 8th Circuit
Age: 46
Education: University of Kansas; University of Kansas Business School; University of Kansas Law School
Clerkships: Melvin Brunetti (9th Circuit); J. Michael Luttig (4th Circuit); Clarence Thomas (Supreme Court)
Before joining the 8th Circuit in January 2018, Judge David Stras served as an associate justice on Minnesota’s Supreme Court—a post he came to after spending several years as a professor at the University of Minnesota Law School, where his scholarship focused on federal courts and constitutional law.
Throughout his judicial career, Stras has demonstrated that he respects the important but limited role that a judge should play, especially when interpreting statutes or the Constitution. As then-Justice Stras wrote in 2014 in a concurring opinion in State v. Ali, the judiciary “does not write statutes; nor do we amend them; no matter the circumstances.”
In a 2011 dissent in Bearder v. State of Minnesota, he wrote that “my role as a judge is not to implement my own policy preferences, but to interpret the law as written.” And in a dissenting opinion in the 2014 case of In re Guardianship of Tschumy, Stras cautioned against the judiciary becoming “a junior varsity legislature.” He has continued his strong textualist approach on the federal bench in a wide range of cases, including ones dealing with a firearms prosecution, a civil commitment for the criminally insane, and immigration matters.
Similarly, Stras has shown a commitment to originalism, co-authoring an article exploring the origins and the Framers’ understanding of the phrase “during good Behaviour” as it pertained to federal judges. Last year, in Rodgers v. Bryant, Stras dissented from an opinion upholding a statewide injunction, which prompted professor Samuel Bray to write that Stras’ dissent should be “required reading for anyone interested in national or universal injunctions” and was “the most detailed and learned decision yet on the history of equity and the scope of injunctions.”
And earlier this year, Stras wrote a concurring opinion in Adeli v. Silverstar Auto, Inc., in which he stated that although he was bound by precedent to affirm a district court’s decision to reduce a jury’s punitive damages award, he questioned, after citing 19th-century commentaries, law dictionaries, and Supreme Court decisions, whether that was the right result on originalist grounds.
Stras also has been a defender of free speech, rejecting two First Amendment challenges to Missouri’s informed-consent law for abortions, vindicating the rights of a concerned citizen to speak to legislators without having to register as a lobbyist, and upholding an injunction against an Arkansas law banning campaign contributions more than two years before an election.
With respect to religious liberty, in last year’s Telescope Media Group v. Lucero, Stras wrote the majority opinion that held that a videographer could not be compelled to videotape and promote same-sex weddings when doing so violated his sincerely held religious beliefs.
Earlier this year, in a dissent from denial of a petition for a writ of mandamus in In re Hawse, Stras argued that a county stay-at-home ordinance explicitly disfavored adherents seeking to engage in religious services by imposing unique gathering-size limitations on them.
You may listen to an interview with Stras on “SCOTUS 101” here.
Kevin Newsom
Judge, U.S. Court of Appeals for the 11th Circuit
Age: 47
Education: Samford University; Harvard Law School
Clerkships: Diarmuid O’Scannlain (9th Circuit); David Souter (Supreme Court)
Judge Kevin Newsom was nominated to the federal bench by Trump and confirmed in 2017. Before joining the bench, Newsom had a stellar career as an appellate lawyer, working for several years at Covington & Burling and then as Alabama’s solicitor general under then-state Attorney General William Pryor Jr., with whom he now serves on the 11th Circuit. Newsom has argued more than 30 cases before federal appellate courts, including four before the Supreme Court.
Newsom believes that good judges must embody three virtues: objectivity, humility, and civility. He expounded on these in a speech entitled “The Cardinal Virtues of Good Judging,” which he delivered at an event sponsored by The Heritage Foundation.
On the bench, Newsom has maintained his fidelity to these principles. When interpreting the Constitution or statutes, he adheres strictly to their text because, as he explained in his Heritage speech, this approach “provides the good judge with an essential objective marker, and thus helpfully constrains the judge’s discretion.”
In one notable opinion, Newsom wrote that “as a practical matter, conscientious adherence to the statutory text best ensures that citizens have fair notice of the rules that govern their conduct, incentivizes Congress to write clear laws, and keeps courts within their proper lane.”
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.
Gregory Katsas
Judge, U.S. Court of Appeals for the D.C. Circuit
Age: 55
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.
Neomi Rao
Judge, U.S. Court of Appeals for the District of Columbia
Age: 47
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.
Stephanos Bibas
Judge, U.S. Court of Appeals for the 3rd Circuit
Age: 51
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.
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.
He published a recent article in the New York Journal of Law & Liberty discussing and extolling the anti-federalist ideas that in many ways shaped our Bill of Rights and the implications of anti-federalist ideas on the current application of executive powers and administrative law.
Although Oldham spent the bulk of his pre-judicial career as an advocate, it’s clear he has adjusted well to his judicial role, takes seriously his responsibilities to faithfully interpret and apply the laws and the Constitution as written, and is committed to fostering a robust public discussion about the basis and development of our constitutional order.
Elizabeth ‘Lisa’ Branch
Judge, U.S. Court of Appeals for the 11th Circuit
Age: 52
Education: Davidson College (B.A.), Emory University School of Law (J.D.)
Clerkships: J. Owen Forrester (Northern District of Georgia)
Judge Elizabeth “Lisa” Branch spent several years in private practice and as an associate general counsel in the Department of Homeland Security and as both special assistant to the administrator and counselor to the administrator in the Office of Information and Regulatory Affairs, part of the Office of Management and Budget, during the Bush administration. In 2012, she was appointed to the Georgia Court of Appeals, where she served until her confirmation to the 11th Circuit in 2018.
Branch has said:
My judicial philosophy is that I am an originalist and a textualist. When I interpret a provision—be it constitution, statutory, or even [a] contractual provision—I am bound by the words in front of me and I look to what the words meant when they were drafted. On a daily basis, I am mindful of my role as a judge; to interpret the laws. Not create laws and not enforce laws.
And her opinions on both the Georgia Court of Appeals and the 11th Circuit reflect this philosophy. (See here, here, and here).
Branch demonstrated a willingness to tackle tough issues and issue a potentially unpopular decision in a recent dissent in Alabama v. Alabama State Conference of the National Association for the Advancement of Colored People (2020), a voting rights case out of Alabama in which she carefully analyzed the text of the Voting Rights Act to support her position that Congress “did not unequivocally abrogate state sovereign immunity under Section 2” of that statute.
She went on to say: “It is difficult to overstate the enormously important role that the abrogation doctrine plays in our federal system. … In its decision today, the majority erodes this constitutional principle by effectively dispensing with the express abrogation test required by the Supreme Court and replacing it with something novel and without foreseeable limitations: Congress prohibits state conduct, ergo abrogation.”
In that vein, Branch has expressed concern with courts incorporating or creating rights through the vehicle of substantive due process and also has highlighted her concern that religious liberty and employment discrimination laws are on a collision course, a prescient view in light of the Supreme Court’s recent Bostock opinion.
You may listen to an interview with Branch on “SCOTUS 101” here.
Noel Francisco
Former Solicitor General
Age: 50
Education: University of Chicago (B.A.); University of Chicago (J.D.).
Clerkships: J. Michael Luttig (4th Circuit); Antonin Scalia (Supreme Court)
Last month, Noel Francisco completed his distinguished tenure as the U.S. solicitor general, serving since 2017. During that time, Francisco argued 17 cases before the Supreme Court, including high-profile ones such as Trump v. Hawaii, Janus v. AFSCME, Kisor v. Wilikie, Knick v. Township of Scott, and Masterpiece Cakeshop v. Colorado Civil Rights Commission. He also made reining in nationwide injunctions a top priority.
During the Bush administration, Francisco worked as an assistant and associate counsel to the president and as a deputy assistant attorney general in the Office of Legal Counsel. He then joined Jones Day, where he maintained a robust Supreme Court practice, representing the petitioners in Zubik v. Burwell and McDonnell v. United States, and the respondent in NLRB v. Noel Canning. He recently rejoined the law firm.
Both before and during his time as solicitor general, Francisco was a frequent speaker at legal conferences, including one at The Heritage Foundation following the death of his former boss, Justice Antonin Scalia. Francisco also published a remembrance of Scalia in the Chicago Law Review. Through these reflections, we learn a lot about Francisco’s own views on the law, especially his reverence for, and commitment to, originalism and textualism.
Francisco has advocated thoughtful reforms to the Administrative Procedures Act, stating that “courts have an appropriate role to play in limiting agency excesses and enforcing the statutes Congress enacted.” Similarly, he has advocated a muscular Second Amendment as a structural protection—a backstop—designed to protect all other rights.
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A president’s judicial appointments often number among his most significant achievements and can constitute an enduring legacy of his administration.
We urge the president and White House counsel, and certainly all the candidates for the presidency, to give due consideration to these highly qualified individuals, who we believe have what it takes to serve with distinction on the Supreme Court.
This article has been modified since publication.