Will Trump Release a New SCOTUS List this Year? (Part 2)

This is the second half of a two-part series detailing the future of Trump's Supreme Court list. Read part 1 here.

I previously looked at the underlying background about the need for Trump to expand his Supreme Court list ahead of the 2020 presidential election, and the potential factors his team would make when deciding which judges to add to the list. Here are my predictions for who will make the list (in alphabetical order), and possible reasons why. For a compact format, see the list here.

Circuit Judges:

Elizabeth Branch (born 1968), 11th Circuit

Judge Lisa Branch joined the 11th Circuit in early 2018 and was on the Georgia Court of Appeals for a few years before that. In her time on the court, she has generally voted with the other conservatives on the court. Her recent dissent in a Voting Rights Act case advanced a novel position that might catch the attention of the White House.

Andrew Brasher (born 1981), 11th Circuit

Judge Andrew Brasher joined the 11th Circuit just yesterday, and was a district judge for a year before that. While it remains to be seen how conservative Brasher is on the bench, he took a number of conservative positions as the Solicitor General of Alabama, and that, coupled with his youth, could allow for his addition to the list. Brasher clerked for Judge Bill Pryor, so he would in effect be taking his “place” on the list (as I said in the previous post, Pryor is likely too old for a Supreme Court appointment now).

Daniel Bress (born 1979), 9th Circuit

Judge Daniel Bress has been on the bench for close to a year now. Before becoming a judge, he was a partner in the D.C. office of Kirkland & Ellis, where he mainly worked on complex civil litigation. While Bress hasn’t seen that many notable cases yet at the 9th Circuit, he has written a dissent in a case related to the Trump administration's "public charge" rule. Bress clerked for Justice Scalia. He could be the first West Coaster on the Court since Justice Kennedy retired.

Patrick Bumatay (born 1978), 9th Circuit

Judge Patrick Bumatay is one of the newest judges on this list, and has been on the 9th Circuit for close to seven months now. While he hasn’t had the opportunity to issue too many opinions yet, he wrote a dissental in an 8th Amendment case about denying an incarcerated person sex-reassignment surgery. Justices Thomas and Alito were likely convinced by his opinion, as they unsuccessfully voted to stay the 9th Circuit’s ruling. Bumatay worked on the confirmations of Justices Gorsuch and Kavanaugh when he was at the Department of Justice. He could be the first Asian-American on the Supreme Court, and could also be the first LGBT Supreme Court justice. Finally, Bumatay could add some geographic diversity to the Court.

Kyle Duncan (born 1972), 5th Circuit

Judge Kyle Duncan has been on the 5th Circuit for over two years now, and has established an aggressively conservative reputation. He has ruled on challenges to abortion restrictions, Voting Rights Act cases, and other controversial lawsuits. Prior to taking the bench, Duncan worked with the Louisiana Attorney General's office and was a top attorney at the Becket Fund for Religious Liberty. Duncan would likely be a top choice of social conservatives.

James C. Ho (born 1973), 5th Circuit

Judge Jim Ho has been on the 5th Circuit for two and a half years now, and he’s established himself as an aggressively conservative judge, questioning campaign finance contribution limits, the current Second Amendment jurisprudence, the Supreme Court’s decisions in Roe and Casey, Employment Division v. Smith, and a host of other issues. From all indications, he’s as conservative as Justice Thomas (for whom he clerked), but his outspokenness on the bench might make him “too hot to handle” for the Senate. Ho was previously Solicitor General of Texas and worked in a number of capacities with Texas Senators John Cornyn and Ted Cruz before taking the bench.

Greg Katsas (born 1964), D.C. Circuit

Judge Greg Katsas has been on the D.C. Circuit since late 2017, and if there was any doubt about his jurisprudence, has proven to be a conservative stalwart on the court. While Katsas is probably too old for a Supreme Court appointment now, I could see him making the list as a credit to his work in the Trump administration (he was a deputy White House Counsel before taking the bench), and in recognition of his close relationship with Justice Thomas, for whom he clerked on both the D.C. Circuit and the Supreme Court.

Barbara Lagoa (born 1967), 11th Circuit

Judge Barbara Lagoa joined the 11th Circuit in December 2019, after spending almost a year on the Florida Supreme Court, and over a decade on the Third District Court of Appeal (based in Miami) before that. She’s had a conservative track record on the state bench, and it’s reasonable to assume that will continue at the federal level. Lagoa is Trump’s only Hispanic circuit court appointee, so she’s a clear favorite to make the list. She also brings a compelling life story to the table, as she’s a daughter of Cuban refugees.

Kenneth Lee (born 1975), 9th Circuit

Judge Kenneth Lee joined the 9th Circuit last June, where he has established a track record of conservative jurisprudence. He wrote an interesting concurrence in a Second Amendment case in January. Lee worked at the Senate Judiciary Committee during the confirmation of Chief Justice Roberts, and was previously in George W. Bush’s White House Counsel’s office. He was born in Seoul, South Korea, and if selected, would be the first Asian-American on the Supreme Court.

Robert Luck (born 1979), 11th Circuit

Judge Robert Luck joined the 11th Circuit in November 2019 after serving for much of the year on the Florida Supreme Court, which Governor Ron DeSantis appointed him to. He was previously on the Third District Court of Appeal and served as an Assistant U.S. Attorney for the Southern District of Florida. While Luck hasn’t written any notable opinions on the 11th Circuit yet, he’ll probably make the list due to his age and because of his ties to DeSantis.

Steven Menashi (born 1979), 2nd Circuit

Judge Steven Menashi has been on the bench for less than a year, and as such, he’s probably known for how contentious his confirmation process was. Menashi was criticized by Democrats and outside groups for his college writings, and his work as acting general counsel of the Department of Education and in the Trump White House Counsel’s Office. Due to how new he is to the bench, I wouldn’t characterize him as a serious contender, but having clerked for Justice Alito, he makes the list regardless.

Eric E. Murphy (born 1979), 6th Circuit

Judge Eric Murphy joined the 6th Circuit last March, and was previously Solicitor General of Ohio, where he argued a number of cases before the Supreme Court. He wrote a strong dissent in the right to literacy case that was ultimately vindicated when the court granted rehearing en banc. Murphy has established a conservative track record on the bench, and his age makes him a credible Supreme Court contender for at least the next decade. Fun fact: He and Judge Daniel Bress clerked on the 4th Circuit for Judge J. Harvie Wilkinson III the same year.

John Nalbandian (born 1969), 6th Circuit

Judge John Nalbandian has been on the 6th Circuit for just over two years now. He has joined an en banc opinion allowing Ohio to cut funding to Planned Parenthood and other abortion providers, and he wrote a dissent in CIC Services v. IRS, an administrative law case that the Supreme Court will hear next term. He'll likely be added to the list in recognition of his close ties with Senator Mitch McConnell. Nalbandian's mother was born in a Japanese-American internment camp, and if selected, he would be the first Armenian-American Supreme Court justice.

Andrew Oldham (born 1978), 5th Circuit

Judge Andrew Oldham wins the prize for the narrowest Senate confirmation vote (50-49) of anyone on this list. He briefly served as counsel to Governor Greg Abbott, and was previously an attorney in the Texas Solicitor General’s office. Oldham worked on practically every hot-button case from 2012 to 2018, so I’m not going to spend valuable column inches enumerating them. Since taking the bench, he’s written and presented research on the Anti-Federalists, which attracted a feature in The Wall Street Journal. Oldham has certainly produced some interesting opinions in his almost two years on the 5th Circuit, and I’m confident he’ll get a serious look for any future Supreme Court vacancy in a Republican presidency. Of the three Alito clerks on the bench, he’s probably the frontrunner to succeed him.

Michael Park (born 1976), 2nd Circuit

Judge Michael Park was appointed to the court in spring 2019, and has voted on a few controversial cases, but not many. Before being appointed to the bench, he was a founding partner of Consovoy McCarthy Park (now Consovoy McCarthy), where he worked on litigation related to the placement of a citizenship question on the 2020 Census, the pending Harvard affirmative action suit, and other controversial cases. Notably, Park was on the panel that voted to revoke bail for two attorneys charged with firebombing a New York Police Department vehicle. He also wrote a dissental in the case about whether the president can block people from viewing his @realDonaldTrump account. As only the second Korean-American to serve on the federal appellate bench, Park already brings some diversity to his court, and he could be the first Asian-American Supreme Court appointee. Park clerked for Justice Alito on both the 3rd Circuit and the Supreme Court, and like him, is a Princeton and Yale Law School graduate. The key takeaway for Park is that he has conservative bona fides and would likely be a suitable successor to Justice Alito (in Alito’s eyes), and would also bring diversity to the Supreme Court. Fun fact: Judges Oldham and Park clerked for Justice Alito the same term (OT 2008).

Neomi Rao (born 1973), D.C. Circuit

Judge Neomi Rao was appointed to the D.C. Circuit in March 2019, and seems to be giving Judge Ho a run for his money in terms of which of them has issued the most provocative opinions on the bench. Previously Administrator of the Office of Information and Regulatory Affairs, Rao is one of the conservative legal movement’s leading thinkers on administrative law. While there were rumors shortly prior to Rao’s confirmation about her being pro-choice, she will likely make the list regardless, due to her close ties to former White House Counsel Don McGahn and her clerkship for Justice Thomas.

Chad Readler (born 1972), 6th Circuit

Judge Chad Readler joined the 6th Circuit in March of last year. He was previously the acting head of the Department of Justice's Civil Division, where he defended many of the Trump administration's policies in federal court across the nation. As Readler is relatively new to the bench, he has not yet decided many controversial cases, but he did write an interesting concurrence in a challenge to Michigan's redistricting commission.

Julius Richardson (born 1976), 4th Circuit

Judge Jay Richardson has been on the 4th Circuit for close to two years now. He’s taken a number of conservative positions on the bench (see his dissent in a challenge to the rescission of DACA that Justice Kavanaugh cited in Department of Homeland Security v. Regents of the University of California, his dissent in a case challenging the Trump administration's new Title X regulation, his votes in the Emoluments Clause cases, and his dissent in this recent case about the Takings Clause and firearms), but he might make the list predominantly for what he did before becoming a judge. Richardson was the lead prosecutor in the trial of Dylann Roof, the man who killed 9 parishioners at the Emanuel AME Church in Charleston, South Carolina, and secured the death penalty for him. Richardson could be a potential nominee to the Court in the unlikely event that President Trump is re-elected but Democrats take control of the Senate.

Allison Rushing (born 1982), 4th Circuit

When appointed to the bench last March, Judge Allison Rushing was the youngest federal circuit judge since 1985. Since then, she’s proven to be a solid vote for the small conservative bloc on her court, such as when she voted to stay an injunction against the Trump administration's new Title X regulation. Rushing’s age and the fact that she clerked for Judge David Sentelle, then-Judge Gorsuch, and Justice Thomas make her a prime contender for the Supreme Court, although she’s likely too new to the bench to be considered in the immediate future.

Justin Walker (born 1982), D.C. Circuit

Judge Justin Walker might not even have taken his seat on the D.C. Circuit when the list will be announced, but I think he’ll be on it, regardless, because of his close ties to Justice Kavanaugh and to Senator Mitch McConnell. There’s not much else to say about Walker, aside from the fact that he’s the youngest judge on the D.C. Circuit in over 35 years, and that he’s clearly showcased his jurisprudence through his scholarship and some of the district court cases he’s decided.

State Supreme Court Justices:

The following State Supreme Court justices will likely be added to the list as well, as they provide further racial and geographic diversity. The chances any of them will be selected for the Supreme Court, however, are slim due to the large number of circuit judges that will be on the list.

John D. Couriel (born 1978), Florida Supreme Court

Justice John Couriel took office in May. He’s the child of Cuban refugees, and his addition to the list would add to Florida’s presence on it. While him being new to the bench means that he isn’t a serious contender for the Supreme Court, he would be the second Hispanic judge on the list following Judge Lagoa. It would also signify some level of praise for Governor Ron DeSantis’s vetting process, as the governor says he himself reads the nominees’ writings before selecting picks. Couriel publicly opposed Trump in 2016 and wrote in Jeb Bush on the ballot, but that probably won’t disqualify him; Judge Don Willett of the 5th Circuit criticized Trump in 2016 and nonetheless received a federal appointment.

John R. Lopez IV (born 1969), Arizona Supreme Court

Justice John R. Lopez IV joined the Arizona Supreme Court in December 2016. Formerly an Assistant U.S. Attorney and the state’s solicitor general, Lopez would be another addition to the list from a battleground state, and could be the first Latino appointed by a Republican on the Supreme Court.

Christopher McDonald (born 1974), Iowa Supreme Court

Justice Christopher McDonald joined the Iowa Supreme Court in 2019 and served on the state court of appeals for a few years before that. He was born in Thailand and immigrated to the United States as a child. McDonald hails from yet another competitive state (Iowa), and putting him on the list might flag him for a future district court vacancy or 8th Circuit seat in the state.

Jonathan Papik (born 1982), Nebraska Supreme Court

Justice Jonathan Papik was appointed to the Nebraska Supreme Court in 2018. He was one of the youngest appointees to the court in its history, if not ever. He could be added to the list because he clerked for then-Judge Gorsuch of the 10th Circuit. As he hails from the Midwest, he could bring geographical diversity to the Supreme Court.

Sarah H. Warren (born 1981), Georgia Supreme Court

Justice Sarah Warren filled now-Judge Britt Grant’s seat on the Georgia Supreme Court. Warren was previously the state’s solicitor general. She would represent another potential battleground state on the list.