4 Top SCOTUS Contenders In The Second Trump Administration
An Asian-American or openly gay Supreme Court justice could be in the cards.
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“Judges are the most successful policy initiative of President Trump’s first term,” said Professor Rob Luther of Scalia Law, who worked on judicial nominations during the first Trump administration, to Bloomberg Law. “And his reelection ensures his transformation of the federal courts.”
Trump’s most consequential transformation, of course, was that of the U.S. Supreme Court. By appointing three conservative, relatively young members—Justices Neil Gorsuch (57), Brett Kavanaugh (59), and Amy Coney Barrett (52)—Trump 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 no liberal justice would willingly give Trump a vacancy. But what if one or both of the two oldest and most conservative justices, Justices Clarence Thomas (76) or 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.
For the record, despite hope from conservatives and fear from progressives, my current (admittedly contrarian) thinking is that we will not see a SCOTUS retirement during the next four years. From 2017 to 2022, the Court welcomed four new justices, almost half of its membership—but that was an unusually high amount of turnover. Recall that for more than a decade—from 1994, when Justice Stephen Breyer was confirmed, until 2005, when Chief Justice John Roberts was confirmed—the Court’s composition remained static.
Yes, the average age of departure from the Court since 1950 is 76.1, which is around Justice Thomas’s current age. But that’s since 1950. If you look at more recent departures, Justice Breyer retired at 83, Justice Ginsburg passed away in office at 87, and Justice Stevens retired at 90. I could easily see Justice Thomas—who’s very active at oral argument, highly engaged with his work, and more influential than ever, given the ascendancy of originalism—staying until at least 2029 (when he would surpass Justice William O. Douglas as the longest-serving justice in American history).
As for Justice Alito, Jess Bravin recently reported in The Wall Street Journal that the justice “has no plans to step down,” according to “people close to [him].” Knowing how such things work, I wouldn’t be surprised if these sources had the justice’s permission to go to the WSJ—his news outlet of choice, a publication that he has both written for and been interviewed by. In addition, per Bravin, Justice Alito has already hired one clerk for October Term 2025, with plans to hire the remaining three “in the coming months.” (Speaking of SCOTUS clerk hiring, I’m working on a new roundup that should appear later this week or early next week; please email me, subject line “SCOTUS clerk hiring,” with any hires not reflected in my last roundup—including this Alito OT 2025 mystery hire, whose identity I actually don’t have yet.)
But let’s say Justice Thomas or Alito does depart the Court (because otherwise we can’t engage in fun SCOTUS speculation). What then?
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 (with JD Vance as vice president breaking a tie). This would give Trump ample leeway to select a severely conservative nominee.
At the same time, as we learned from the implosion of Matt Gaetz’s nomination to serve as attorney general, Trump’s discretion on appointments is not unlimited. The more important the position, the greater the Senate scrutiny—which is why I don’t think we’re going to see a nomination going to Jeff Clark, John Eastman, or Alina Habba. (But Clark and Eastman, who have impressive legal résumés, wouldn’t have been crazy picks for high-ranking government jobs—in fact, Clark himself won Senate confirmation for his former Justice Department post—before they… went crazy).
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 sticking to circuit judges would still leave Trump with plenty of options: he appointed more than 50 judges to the circuit courts, and according to a recent study by law professors Stephen Choi and Mitu Gulati, many of these 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 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 Justice 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 Justice 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 are prominent and popular jurists in conservative circles, and 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 Justice Thomas, who swore him in as a Fifth Circuit judge. Thapar wrote a book, The People's Justice: Clarence Thomas and the Constitutional Stories that Define Him, praising the justice and his jurisprudence. (As between the two of them, Judge Ho has the advantage of being slightly younger, while Judge Thapar has the advantage of ties to vice president-elect JD Vance—whose highly accomplished wife, Usha Vance, clerked for Thapar, en route to clerkships with then-Judge Kavanaugh and Chief Justice Roberts.)
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 his most well-known case, NetChoice, LLC v. Paxton, Judge Oldham 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 Justice 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, Judges 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 the data-driven Empirical SCOTUS website to legacy media outlets like CNN, these three judges lead the pack.
On the Advisory Opinions podcast [around 25:00], 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 [around 7:50], as a SCOTUS contender.
Judge Bumatay’s full-throated originalism, expressed most notably in dissents from denials of rehearing en banc aka “dissentals,” draws heavily on Justice Thomas’s jurisprudence. And Bumatay, a married father of two, 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 does enjoy surprising people (as 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 the obvious frontrunners, an expanded 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 U.S. solicitor general Noel Francisco and former Texas solicitor general Jonathan Mitchell (who successfully represented the incoming president in Trump v. Anderson, the effort to remove him from the 2024 Colorado presidential primary ballot based on the Fourteenth Amendment).
Regardless of Trump’s ultimate pick—assuming he even gets another vacancy to fill, which is by no means certain—the bottom line is this: when it comes to possible Supreme 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.
A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.
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This is a perceptive analysis, Mr. Lat. I have a follow-up question, though — a somewhat sensitive one which you may feel free to sidestep or ignore altogether without giving a particle of offense:
Of those you've mentioned, or others you're familiar with, who do you think Trump would think most likely to feel the strongest loyalty and allegiance to the POTUS who nominates him?
I phrase it this way so you won't have to assume or presume or impute lack of fidelity to the law to any of these judges. But another way of asking it would have been, justified or not (and we'll hope not), which of them would Trump perceive as most likely to try to bend the rules in a dispute involving Donald J. Trump?
I don't think he comprehends or gives a fig about the Rule of Law or anything other than his own aged butt, and I think if he gets a chance, he'll pick the candidate whom he thinks will be most personally loyal regardless of the law, but whom he could still get through the current Senate.
(An aside: Thanks for your link to the January 2024 New Yorker profile of Ms. Isgur. I note that although it's paywalled, the New Yorker chose to make it accessible to anyone using an "incognito" window.)
One question to ask is: to what extent will Trump hand over the nomination of a justice to the Federalist Society? This time around, he may not defer to Leonard Leo et al. So we may see a surprise, such as Harriett Meyers under George Bush. The incoming Solicitor General is one possibility.
Thinking strategically, Judge Bumatay may be the best choice. He is ideologically strong but not perceived as a jerk. I cannot say the same for Judge Ho, for example.
Much depends on when a vacancy occurs. If it happens after the 2026 elections, Trump may face a hostile Senate. The Republicans will likely lose seats in the next election; they may even lose a majority. If that happens, the Democrats may say, "Talk to us about an acceptable candidate. If you refuse, the seat can remain vacant until after the 2028 election."