OPINION:
In 2016, President Donald Trump produced two lists of 21 Supreme Court prospects to replace Justice AntonioScalia. The strategy was a political success for President Trump, but yielded the nomination of Justice Neil Gorsuch, who has been constitutionally hot and cold — coldest when he wrote the infamous “Bostock” opinion in which the Court held that the 1964 Civil Rights Act created trans-sexual and homosexual rights.
Although Trump’s approach in 2016 yielded electoral success, a new strategy may be needed in this present hour.
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In his parable of the wineskins, Jesus taught about the need for new ideas in new seasons, “And no one pours new wine into old wineskins. Otherwise, the wine will burst the skins, and both the wine and the wineskins will be ruined. No, they pour new wine into new wineskins.”
Last month, President Trump announced plans to release a new short list of Supreme Court prospects.
“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,” Mr. Trump told The Washington Times. “There are people who say the list helped me win the election last time. Frankly, I think Biden should be doing the same thing.”
SEE ALSO: Trump plans new short list of 20 potential Supreme Court picks
The former president said he wouldn’t rush the list but would make it public before the election.
Trump’s idea is great, except that it creates inner tension because it calls for “great” prospects, but also seeks a list of about 20. The problem is there aren’t 20 great prospects. I know because our work at The Center for Judicial Renewal has researched them extensively.
The answer is not to create a list of 20, but to create only a list of great prospects — whether that results in one name or 20 names.
There is a process for creating a list of great Supreme Court prospects: First, establish an objective written standard for measuring prospects. Second, evaluate prospects according to that standard. Third, publish a list with only those prospects.
Establish a standard
Over 20 conservative constitutionalist leaders have already agreed upon a standard for evaluating and choosing the best Supreme Court prospects. These trustworthy leaders (Former Governor Mike Huckabee, Tim Wildmon, Tony Perkins, Michele Bachmann, Walker Wildmon, Kelly Shackleford, Gary Bauer, Chad Connelly, Frank Gaffney, and many others) agree that a president should:
“Only nominate Supreme Court justices with the best long-term, demonstrable record of commitment to the constitutional role of judges, which is to decide cases according to the original meaning of the Constitution and legislative texts, and to never legislate from the bench.”
The Center for Judicial Renewal has researched 11 policy areas under this standard, and it truly separates the wheat from the chaff.
Measure prospects with the standard
When it comes to selecting Justices who will serve on the High Court for a generation, there is no substitute for research and written evaluations. In the past, too many presidents have relied on personal endorsements. For example, John Sununu famously told President George H.W. Bush that David Souter would be a “home run” on the Court. For those keeping score, Souter was not a “home run” but a lefty “strike out.”
President Trump should consider our conservative and constitutionalist research. The Center for Judicial Renewal has spent thousands of hours researching over 25 prospects for the Supreme Court. This intense research typically results in 30-60 pages of data on each prospect. We consider performance on key issues including life, religious liberty, and the LGBTQ+ agenda. We also consider the faith, worldview, and judicial philosophy of each prospect. We have measured all prospects according to the above “Standard,” and thus far, have identified six Supreme Court prospects that we call “The Green List.”
Green List of 6 SCOTUS prospects
The shortlist with complete research summaries on our Green List is publicly available. For now, we have green-listed:
- Judge James Ho, U.S. Court of Appeals for the Fifth Circuit
- Judge Lawrence VanDyke, U.S. Court of Appeals for the Ninth Circuit
- Judge Kyle Duncan, U.S. Court of Appeals for the Fifth Circuit
- Kristen Waggoner, CEO, President & General Counsel, Alliance Defending Freedom
- Mark Martin, Dean of High Point University School of Law
- Morse Tan, Dean of Liberty University School of Law
This is the research-backed shortlist Mr. Trump should consider.
Show me the research
In his first term, President Trump’s judicial nominations were the best of any president in modern history. But even President Trump’s nominations yielded mixed results, and there is still substantial room for improvement … if we learn from history.
In Trump’s next administration, he should swing for the fences by rejecting “conclusory endorsements” and instead demand that his team brief him with comprehensive research that measures prospects according to the above conservative/constitutionalist-backed standard.
We’ve done the research, and unfortunately, there are not 20 Green List prospects. That means President Trump would be wise to keep his list shorter. A longer list worked in 2016, but 2024 is a new era.
A new wineskin is needed.
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Phillip Jauregui is senior counsel for AFA Action and director of the Center for Judicial Renewal. He is an expert in constitutional law, judicial policy, and non-profit coalition building. He worked in the judicial branch as a law clerk and also served in the executive branch as an assistant legal advisor. Phillip was an organizer for the Judeo-Christian Council for Constitutional Restoration Inc., which was dedicated to stopping judicial supremacy for the next generation. He served as executive director of the Judeo-Christian Council and as coalition builder for ValuesVoter.org. He has served as a guest host for talk radio shows and has appeared on Fox News, CNN, CNBC, ABC, and other news programs.
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