(Photographer: Samuel Corum/Bloomberg)
If you’re an enterprising conservative legal mind with eyes on the Supreme Court and you’ve spent your career building a reputation as a serious, cautious jurist with an impeccable reputation among colleagues and practitioners alike… SUCKER! As we march toward the 2024 election, conservatives are publicly pitching the Trump campaign on their preferred Supreme Court picks and the list is short on bookworms and long on peacocking.
Alina Habba infamously said she’d rather be pretty than smart and no one knows their way to earning Trump’s legal trust better! So if you’ve spent the last few years throwing public tantrums, calling law students “appalling idiots,” publishing opinions blasting fellow judges as criminals and demons, or running a performative tour to gin up publicity for the protests it draws, then this is your moment!
By way of background, back in 2016, Donald Trump took a Federalist Society Supreme Court shortlist and fronted it as his own in a bid to lock down conservative support. It may all seem like a dream, but back in May of 2016, many Republican voters feared Trump as an insufficiently right-wing, New York City libertine. Publicizing this shortlist well in advance of the election — an unorthodox move, but also one occasioned by the Scalia/Garland seat — helped Leonard Leo soothe worried GOP voters that whatever Trump’s idiosyncrasies, the Federalist Society was firmly in control.
Fast forward to May 2024 and conservatives don’t really need to be convinced that Donald Trump will reliably stock the federal bench with right-wing loyalists, and yet he’s planning to return to the shortlist well, telling the Washington Times, “I’m going to be putting together a list of judges — great judges — a list of about 20. I think it’s important to reveal who your Supreme Court justices will be.”
One conservative activist group decided to jump the line on the Federalist Society and get their list out there first — presumably to give Trump some light reading during his trial that the lady with the portable printer can hand him. The Center for Judicial Renewal, the legalish mouthpiece of the American Family Association, published its shortlist with the explicit aim of not “relying solely on the Federalist Society,” polling a team of “conservative constitutionalist leaders” including Former Governor Mike Huckabee (not a lawyer), Tim Wildmon (not a lawyer), Tony Perkins (not a lawyer), Michele Bachmann (actually has a law degree!), Walker Wildmon (not a lawyer), Frank Gaffney (not a lawyer but a noted anti-Muslim conspiracy theorist so… there’s that!), and many others of comparable legal chops.
While the “Green List” doesn’t purport to rank the picks, the fact that James Ho ends up on top of a non-alphabetical list validates one of the thirstiest and most shameless campaigns for high federal judicial office in history. He’s been lightning quick to get his name in the media, whether it’s leveraging his public office to bully popular right-wing cable news punching bags, newsjacking Clarence Thomas’s ethical lapses, or reverse-engineering partisan opinions based on embarrassingly shoddy legal research. No judge has asserted themselves as style over substance this aggressively since the twilight years of Scalia and Ginsburg.
Lawrence VanDyke is one of the many Trump appointees deemed utterly unqualified for judicial office and has spent his tenure confirming the ABA’s assessment. Noted as “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules,” he squarely fit the bill of the last administration’s nominating strategy. He’s spent his time on the bench writing bombastic opinions insulting his colleagues like Scalia without the cleverness.
Wrestling heel Stuart Kyle Duncan took a trip to Stanford Law “looking more like a YouTuber storming the Capitol” per a contemporary account published on David Lat’s Substack. Viral video clips swirled showing students loudly booing the judge and he characterized it as an ambush where he was not allowed to speak. Fuller versions of those clips showed students asking thoughtful, probing questions that he did not want to answer and him insulting them until they booed. The law school sacrificed its dignity to appease him though so… he scored one of those precious culture war victories that “conservative constitutionalist leaders” care about.
Kristen Waggoner is a representative of a recognized hate group and tours the country’s campuses trying to stir up protests that can be milked for faux outrage. Her appearance at Yale Law jumpstarted James Ho’s crusade against campus protest and leaned on the school’s administration to prostrate themselves to earn Ho’s approval. As an advocate, she’s been successful with the current Court in scaling back gay rights whether there’s actually a real justiciable claim or not! And, really, what more does the right need from a justice than a willingness to manufacture facts?
High Point University doesn’t even have a law school. Its first class is entering this summer. Was Mark Martin knee deep in January 6? You betcha!
The footnotes in the [January 6 Committee] report, in the section about how Trump refused to concede the election loss during his speech on Jan. 6, state that “Martin advised President Trump that Vice President Pence possessed the constitutional authority to impede the electoral count,” which was an approach that was not legally viable and that Pence would not pursue.
Of course.
Morse Tan is the former Ambassador at Large for Global Criminal Justice. Tan spent time in government service addressing genocide and war crimes around the world. That seems… like an actual qualification! Now, does this expert in genocide say that reproductive freedom is worse than the Holocaust? Oh, absolutely!
After the official Dobbs opinion was released, Tan was interviewed on a podcast in which he revealed his strong pro-life stance. He explained, “When you’re talking about something like 63 million lives of innocent unborn babies that have been snuffed out since 1973, this is…this makes the Holocaust look small by comparison.
Still, Tan is the only one on this list who hasn’t spent the last few years courting conspiracy theories or shamelessly stunting for right-wing accolades. So he’s clearly not getting it.
Almost more interesting than the Green List are the MAGA troopers who did NOT earn the seal of approval. Judge Lisa Branch has been attached at James Ho’s hip for all of his shameless campus speech stunts and forcefully advocates for the authoritarian rewriting of free speech to protect the powerful and squelch dissent, and yet she lands squarely in the organization’s middling “Grey List.”
Judge Andy Oldham is also on the Grey List, probably because he tussled with Ho over the proper interpretation of a Bible verse.
And poor Neomi Rao got red flagged. After all her work penning an “embarrassing mixtape of judicial activism and anti-textual hot takes that she hoped would win her a seat on the country’s highest court.”
Sad.
This is, of course, not the FedSoc list and there’s no reason to believe Trump will shut out Leo’s advice when he ultimately releases an official list. But this is a clever move on the part of the American Family Association. When these names all show up on the official list too, they’ll posture their shorter list as a “consensus” and elevate their favorites while tamping down on otherwise promotable FedSoc stars like Rao.
By putting out attention-grabbing announcements first, they’ve muscled their way into a conversation they had no business joining. A lot like their proposed wish list.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
