Trump’s Smart Outsourcing Of Judicial Picks


Publish Date:
May 8, 2017
  • Feldman, Noah
Bloomberg View
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Plenty of Donald Trump’s decisions have been outside the conservative mainstream. But when it comes to judicial nominees, the Republican president seems to be calling them right out of the Federalist Society playbook. First came his U.S. Supreme Court nominee, Neil Gorsuch, whose selection was predictable based on his elite legal conservative credentials. Now the individuals in his first wave of appellate nominees seem to be cut from the same cloth.

I know several of the nominees personally and others by reputation — and that’s not a demographic accident. Trump is naming judges from my generational cohort, roughly mid-40s to early 50s. Lots of the nominees come from the legal academy and clerked for the Supreme Court. These are environments in which legal elites meet early and stay loosely in touch for a lifetime.

In fact, my approach to every really difficult statutory interpretation case was first to try and figure it out for myself, then ask Coney (as she was known then) and Justice Stephen Breyer’s clerk Jenny Martinez, now of Stanford Law School, what they thought. Inevitably, they had both analyzed the issues at a much deeper level than I had.

I don’t agree with Barrett on too much, jurisprudentially speaking. But she’s a top flight, indeed brilliant lawyer. In a Democratic administration, the equally brilliant Martinez would deserve the judgeship. In a Republican one, it seems fair for it to go to Barrett.

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