3 weeks ago
President-elect Trump can be expected to stick to his previous judicial philosophies when looking for a potential Supreme Court nominee if a justice retired from the high court, experts say.
Trump appointed three justices to the Supreme Court, all three of whom were under the age of 55 at the time of their appointments. Likewise, Trump appointed more than 50 federal appellate judges during his first term.
Politicians and media personalities have called for the older justices on the court to step down, particularly justices Clarence Thomas and Samuel Alito, in anticipation of a Trump presidency. Such calls were also directed toward justices Sonia Sotomayor and Elena Kagan prior to the general election. Politico recently reported Democrats are discussing whether Sotomayor should resign during their two remaining months in control of the Senate.
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"No one other than justices Thomas and Alito knows when or if they will retire, and talking about them like meat that has reached its expiration date is unwise, uninformed and, frankly, just crass," conservative legal activist Leonard Leo told Fox News Digital in a statement. "Justices Thomas and Alito have given their lives to our country and our Constitution and should be treated with more dignity and respect than they are getting from some pundits."
Trump may have the opportunity to further bolster the conservative majority by appointing younger justices if any justices retire.
"I think you can start counting down the days until Thomas retires," said Devon Ombres, senior director of courts and legal policy at CAPAction. When asked where Sotomayor and Kagan stand, Ombres said, "They're not leaving now."
"We're starting to already see conservative activists take the jump in favor of having justices Alito and Thomas retire so that President Trump can replace them with nominees in their 50s as a way of preserving conservative majorities for the next 15 to 20 years on the court," John Yoo, the Emanuel Heller professor of law at the University of California at Berkeley, told Fox News Digital.
Yoo noted, however, that even if such retirements were to take place, the balance of the court as it stands now would remain the same.
"It's not clear to me that they should retire," Yoo said. "They're in their mid-70s, and they both seem to be in good health. And they're both at the top of their game."
Yoo added that if there was a retirment, Trump would likely look to the appellate judges he appointed during his first term as potential nominees.
"I think Trump, given his practices, would probably favor appointing people that he had appointed already to the circuit courts," Yoo said. "And he has a lot to pick from because he picked a lot of young conservatives."
Ombres specifically noted judges James C. Ho and Stuart Kyle Duncan on the Fifth Circuit as potential Trump nominees to the Supreme Court. Of the 17 active judges on the court, six were Trump appointees.
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While Yoo did not pick out particular names, he predict4ed Trump will continue to fall back on certain judges.
"Going by who Trump picked already, he picked people who seemed committed to originalism, people who had Justice Department backgrounds. He picked some people like that."
In anticipation of his first administration in 2016, Trump released a list of potential Supreme Court nominees. It was later expanded ahead of the general election that year and once again in 2017. The list proved to be a tactic to ease the minds of Republicans concerned about Trump's capacity to appoint conservative justices to the court.
Yoo said he does not expect Trump will repeat himself this time around with an updated list.
"I think last time he did it, he was trying to win over the Republican Party, and he was an outsider. Nobody knew whether he was conservative or not. And, so, he put out that list," Yoo said. "And, so, it's actually quite clever of Trump at that time to release the names and stick to them as people he would appoint to the Supreme Court because it really committed him in the minds of conservatives.
"And he kept his word. And I think that he doesn't need to now because people can see his track record."
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