How Trump Is Picking 'battle-tested' New Judges

The White House is quietly moving to resume President Donald Trump’s transformation of the federal judiciary. But the process looks different this time.

An announcement of Trump’s first round of judicial nominations since returning to office is expected within the next few weeks, according to four people aware of the plans who were granted anonymity to discuss private White House deliberations. Former White House counsel Don McGahn, who had fallen out of favor with the president, is returning as an informal outside adviser on the process, said several people briefed on the discussions. (McGahn did not respond to requests for comment.) And Stephen Kenny, the deputy White House counsel for nominations who previously worked for Senate Judiciary Chair Chuck Grassley, is laying the groundwork to move judges through the confirmation process swiftly, tasked with interfacing with lawmakers and interviewing potential nominees.

Trump’s generational mark on the federal judiciary — appointing more than 200 judges and bolstering the conservative majority on the Supreme Court with three new justices — has been widely viewed as one of the most significant achievements of his first term. But as federal courts move to block his administration’s agenda and the president becomes increasingly emboldened to challenge judges’ authority, Trump allies have a renewed appetite to reshape the courts during his second stint in the White House. With even stalwart conservative jurists like Supreme Court Justice Amy Coney Barrett now drawing the ire of the MAGA right, Trump’s new judicial pipeline is seeking a key qualification: loyalty.

“They’re going to be looking for even more bold and fearless judges,” said Trump ally Mike Davis, Grassley’s former chief counsel for nominations who assisted the first Trump administration with Supreme Court fights. “Judges who have been battle-tested.”

Trump has been known to expect fealty from his lifetime judicial picks, whom he has called “my judges.” Democrats fear that this time, they will be younger and more ideological. Yet there’s little that the minority party can do to block any given nominee, as Republicans have a 53-seat Republican majority in the Senate and the chamber did away with the rule requiring judicial nominees to clear a 60-vote threshold to advance to final confirmation.

Sen. Richard Blumenthal (D-Conn.) conceded in an interview that ultimately Democrats had to win back the majority if they wanted to stop Trump from filling the bench with even more conservative judges.

“I think they will be more ideologically extreme, on the fringe of what used to be the Republican Party,” said Blumenthal, a member of the Senate Judiciary Committee. “They will be MAGAs, basically. Given the trend of the end of the last Trump term, we’re heading over a cliff in terms of fringe right wing views. They will have a litmus test on steroids.”

It remains to be seen what kind of judges the new Trump administration will select and if they will be similar to those from his last time in the White House. Michael Fragoso, who served as chief counsel to Senate Majority Leader Mitch McConnell, questioned whether the administration would prioritize those candidates with experience around flashpoint conservative issues like immigration and women’s sports.

“The question it seems to me is whether they will follow the preference of the first term, in terms of prioritizing people with administrative law experience and a hostility to the administrative state,” said Fragoso. “Or will they look to people with more concrete experience dealing with the kinds of legal issues that are top of mind for Republicans today?”

There’s also a new brain trust helping run point on Trump’s judicial nominees this time around. While conservative legal activist Leonard Leo, who led the Federalist Society, was considered one of few masterminds behind the White House’s judicial selections during Trump’s first term, the unrivaled influence of the Federalist Society appears to be waning. Leo isn’t directly involved in the process this time, according to a person with knowledge of the dynamic, granted anonymity to reveal inner workings of the pipeline. One conservative leader previously involved in the process said it is less streamlined this time around without Leo and his group’s primary influence.

“There appears to be a more varied collection of outside groups beyond the Federalist Society seeking to play a role,” said that person, who was granted anonymity to speak candidly about the process. “I do think the process is going to be more dispersed, because there are a lot of strong personalities in the building who have taken an interest in the courts.”

Still, many conservative lawyers say Leo is certain to have influence on the process—regardless of his standing with the president—because of his longstanding ties to almost everyone in the conservative legal movement.

Davis, who runs the conservative judicial advocacy group The Article III Project and has worked closely with deputy White House counsel Kenny, sees his role as advising the White House on potential picks. Kenny reports to White House counsel David Warrington. And outside the West Wing, Aaron Reitz, who was Texas GOP Sen. Ted Cruz’s chief of staff, is set to work on this issue once he is confirmed as assistant attorney general for the Justice Department’s Office of Legal Policy.

For now, the revamped judicial confirmation team can only have a limited impact with just about 45 vacancies across the country and about a handful of circuit court slots. Appeals court judges have been slow to retire since Trump took office, a major obstacle for a White House looking to maximize its impact on the federal bench. It took nearly two months into Trump’s second term for any circuit court judge to decide to take senior status. But with Supreme Court Justices Clarence Thomas now age 76, and Samuel Alito, age 74, Trump could potentially fill two more Supreme Court seats.

Davis has compiled his own list for potential Supreme Court nominees Trump could choose from in the event there’s an opening during the next four years. In an interview, he floated Judge Aileen Cannon for the job.

Cannon, who is currently a federal judge on the district court in Fort Pierce, Fla., has faced scrutiny for her rulings in the president’s favor, including her dismissal of the case charging Trump with retention of classified documents. In a speech at the Department of Justice earlier this month, Trump, who nominated Cannon to the federal bench in 2020, called her “brilliant.”

Another federal judge for Florida being discussed in conservative circles as a possible Supreme Court pick is Kathryn Kimball Mizelle, a Trump district court appointee who sits in Tampa and a former law clerk to Justice Clarence Thomas. In 2022, she struck down the federal mask mandate for travel by plane and on other public transportation. (She’s married to Chad Mizelle, who’s chief of staff to Attorney General Pam Bondi and currently acts as DOJ’s No. 3 official.)

The influential D.C. Circuit Court of Appeals is a potential stepping stone for any future Supreme Court pick. Republican lawyers gaming out potential scenarios have their eyes on the seat currently occupied by Judge Karen LeCraft Henderson, 80, an appointee of President George H.W. Bush. She’s been on the court for nearly 35 years.

So far, there are already interviews underway for district court judgeships in Missouri and Florida, where the Republican senators are likely to put forward potential nominees that align with the administration’s agenda, according to a person with knowledge of the process granted anonymity to discuss private dynamics. Sen. Susan Collins (R-Maine) has also put out a solicitation for applications for the vacancy on the First Circuit.

And while Trump may have more limited opportunities to appoint new judges, he stands to benefit in his second term from significant changes Senate Republicans have made to the judicial nomination process. Under McConnell, who was passionate about confirming judges and played a major role in the process in Trump’s first term, Republicans eliminated the filibuster for Supreme Court nominees, allowing Trump to confirm three justices in his four years in office without relying on Democrats. Grassley, during his last time helming the judiciary panel from 2015-2019, abolished the so-called blue slip process for circuit court nominees, meaning that those judgeships no longer required approval from home-state senators to move through the confirmation process. And in 2019, the Republican majority also limited floor debate time on district court nominations to speed things along.

”Those two changes, which are hugely important, I think make it less important to have someone with McConnell’s skill now,” said one conservative activist, granted anonymity to discuss sensitive Congressional dynamics, of the debate time and blue slip policy revisions. (Sen. John Thune (R-S.D.) became majority leader earlier this year.)

In other words: once Trump’s new team starts putting up judicial nominees, he’ll have a Senate primed to confirm them.