Most of the lawyers Donald Trump has recently selected for lifetime appointments to the federal bench resemble those of his first presidency, despite his threat to abandon the Federalist Society and the establishment conservatism that drove his first-term judicial juggernaut.
The nominations through mid-August, more than 20 total, have drawn the attention of influential right-wing voices looking ahead to a possible vacancy at the US Supreme Court.
Lawyers familiar with the current process say Trump has been more involved this term, speaking with some potential candidates. And White House attorneys appear aware that jurists contemplating retirement are watching whom Trump is choosing for lifetime seats in the three-tier US judiciary.
After early bluster and the contentious choice of Emil Bove to a powerful US appellate court, the White House has developed a more traditional pattern in which Bove may ultimately be more of an outlier than model.
The Wall Street Journal editorial page, which criticized the selection of Bove, this week wrote that Trump’s picks “are moving in a comforting direction.” Bove, a former personal attorney for Trump, became a top Justice Department official after the election and began pushing a political agenda that included dropping federal charges against New York City Mayor Eric Adams.
The WSJ editorial page editors, who are close to some Supreme Court conservatives, in July had warned that Trump’s choices could deter potential retirees on the federal courts. Pointing to Bove, the editors said, “such nominations have a potential cost for Mr. Trump, in that Supreme Court Justices and lower-court judges will ponder the quality of the President’s choices when deciding whether to retire or take senior status.”
Yet, this week, they wrote approvingly of a recent appellate court nominee, Rebecca Taibleson, and declared, “Better nominees mean more vacancies.”
Judicial retirements this second Trump term have been relatively “meager,” as Russell Wheeler of the Brookings Institution recently documented. Fewer judges have announced their retirements since Trump’s 2024 election than after any other presidential election going back two decades, Wheeler found, speculating, that even jurists who’d been appointed by Republicans may be concerned about whom Republican Trump might name as successors.
The consequences of these lifetime posts in American life cannot be overstated. Judges, from the district courts to appellate bench to the Supreme Court, are positioned to decide lawsuits against Trump’s aggressive second-term agenda, along with recurring battles over reproductive rights, racial remedies, and the separation of church and state.
So far, most Trump nominees have ties to the Federalist Society and took established right-wing paths. Several, including Taibleson and Eric Tung, nominated to regional US appellate courts, served as law clerks to conservative Supreme Court justices.
Others are well-known leaders of red-state litigation, including Missouri state solicitor general Joshua Divine and Alabama state solicitor general Edmund LaCour, nominated to US district court posts in their respective states. (Divine, like Bove, was confirmed this summer; most other nominations are still pending in the Senate.)
“For all the talk of how it’s a different kind of judge this time, it’s the same pool of people they’re pulling from,” said Michael Fragoso, former chief counsel to then-Senate Republican Leader Mitch McConnell. “It’s the same apple cart, just slightly different apples.”
The second term nominees as a group, Fragoso added, appear to have more experience in Republican politics, for example, working with GOP campaigns and Republican committees, or as state political appointees.
During Trump’s first presidency, then-Senate Majority Leader McConnell was a crucial member of the triumvirate that steered judicial appointments. The other two others were Don McGahn, then White House counsel, and Leonard Leo, a Federalist Society leader.
Trump disparaged the Federalist Society earlier this year after a US Court of International Trade panel that included a first-term Trump appointee ruled against his tariff policy.
“I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations. This is something that cannot be forgotten!” Trump wrote on Truth Social in May, specifically denigrating Leo as a “sleazebag.”
Leo responded by saying only that he was pleased with the first-term judicial legacy; he declined to comment for this story.
The Federalist Society, which began four decades ago as a debating society and incubator for conservative law students and grew into a behemoth that influenced judicial selection for a succession of Republican presidents, would be impossible to outright avoid. Its network is so vast that virtually all leading lights of today’s conservative movement, including those in the administration, have participated in Federalist Society programs.
How the process works this term
The daily business of judicial selection is currently shepherded by deputy White House counsel Stephen Kenny. He most recently worked for the Republican National Committee and earlier, at the Jones Day law firm (home of former White House counsel McGahn) and for Senate Judiciary Committee Chairman Chuck Grassley.
White House officials declined to answer specific questions about its vetting process and the people Trump has personally screened.
“The President continues to rely on his senior White House advisors, White House counsel, and the Department of Justice, who present him with thoroughly vetted candidates for his consideration and final determination,” a senior White House official said in a statement to CNN. “Other individuals and groups are always free to share their views, but the president is the ultimate decision-maker. The president seeks to appoint judges who will faithfully apply the law in the mold of Justices Thomas and Alito and the late Justice Scalia.”
A larger number of people are plainly involved than during the first term, both within and outside the White House.
Mike Davis, a former counsel to Grassley and now president of a conservative advocacy organization (The Article III Project) has relentlessly pushed for tough, “fearless,” nominees. And Davis has Trump’s ear, according to lawyers close to the administration.
Davis praised Bove, particularly citing his action to end the Adams prosecution. He also last week publicly backed Taibleson, whose background would have positioned her for appointment in any GOP administration. She was a law clerk to US Appellate Judge Brett Kavanaugh (now a justice appointed by Trump) and the late Justice Antonin Scalia. A federal prosecutor in Milwaukee, she also served a stint in the US solicitor general’s office, which represents the administration before the Supreme Court.
Former McConnell counsel Fragoso, now in private practice, is among those Republicans hoping for a Supreme Court retirement in upcoming months.
“If a justice who’s thinking about retiring wants to be replaced by a strong conservative, now is the best time in 40 years to do it,” Fragoso said. “There’s a president who wants to pick strong conservatives and a Senate that is eager to confirm strong conservatives. And that is a rare situation.”
Neither of the two eldest justices, Thomas, 77, and Alito, age 75, responded to CNN’s questions about their retirement plans. Both are Republican appointees who would favor likeminded successors.
Thomas has been on the bench since October 1991, nearly 34 years, and if he stays three more years would become the longest serving justice in US history.
Thomas may not want to set a record, but he has shown no sign that he is ready to step down. Alito, meanwhile, has seemed increasingly disgruntled over his nearly 20 years on the bench. But he is still young for a Supreme Court retirement. He also remains on the winning side of most tightly fought cases.
Based on past cycles of nomination politics, there is bound to be substantial right-wing pressure on Thomas and Alito to retire and give the president an opportunity to name a younger successor.
Difficult to cut out Federalist Society influence
In May, deputy White House chief of staff Stephen Miller told CNN the White House is no longer using the Federalist Society to screen potential nominees.
Yet, its broader atmosphere cannot be escaped.
Both Thomas and Alito were Federalist Society stalwarts, and anyone who would succeed them likely would have been, too.
For decades, the group has been a prime forum for connections and advancement on the right. Its annual conference draws thousands of lawyers, judges, and administration officials. Individual justices often speak at its black-tie dinner.
Last year, US appellate Judge Andrew Oldham, a former law clerk to Alito, was the opening conference speaker, and US appellate judges James Ho and Neomi Rao, former law clerks to Thomas, have been featured at Federalist Society events.
All three judges are all still relatively young (Oldham, 46; Ho, 52; Rao, 52), and given their credentials, connections and hard-right decisions, they are apt to make any initial list for a Supreme Court opening.
Some well-regarded US appellate judges Trump considered in his first term, such as Amul Thapar, 56, may be out of contention simply because the trend favors younger candidates.
If Trump were to look beyond the federal bench, possible contenders could be US Sen. Mike Lee, 54, a former Alito law clerk and federal prosecutor who was on Trump’s highly publicized 2016 list, or current US Solicitor General John Sauer, 50.
Sauer, who served as a law clerk to Scalia, would come with the bonus of having successfully represented Trump in the 2024 Supreme Court case that gave him immunity from criminal prosecution.
And if the president has sent a single message in this second term, it’s that loyalty matters.
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