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Who Might Trump Add to an Expanded List of Supreme Court Nominees?

By Jordan Lorence posted on:
October 17, 2017

At a meeting with House and Senate Republicans this month, Donald Trump indicated that he might consider adding up to four names to his existing list of 11 potential Supreme Court nominees. Who might be added to such a list?

If the fear that “Washington insiders” might make terrible Supreme Court justices is the reason why his current list contains no one from “inside the Beltway,” it is a regrettable miscalculation, not because all “insiders” are good, but because some “insiders” are good. Trump should consider adding those who have proven, while inside the Beltway, that they won’t succumb to Potomac Fever.

Now, to be perfectly clear: The people named on Trump’s list are all outstanding jurists, some of whom I know personally. These qualified candidates would make excellent Supreme Court justices. But who wasn’t on that list also made some news, and the question is, why were they left out?

Proven people who didn’t make the list

For example, two well-respected members of the U.S. legal community, former Solicitor General Paul Clement and D.C. Circuit Court Judge Brett Kavanaugh, did not appear on the list, and they really should be included. Both are eminently qualified to serve on the Supreme Court. Clement served as solicitor general for four years under President George W. Bush and has argued many cases before the high court. Kavanaugh worked at the White House Counsel’s office under Bush before joining the U.S. Court of Appeals for the District of Columbia.

Were they excluded because some perceive them as “Washington insiders,” that is, people who have worked in D.C. for many years, and who may have become ideologically “tainted” and weakened from exposure to the powerful D.C. elites who tempt others to abandon their traditional constitutional principles in order to be accepted by the “in group”?

If that is the reason, then Trump or his advisors should reconsider them. The issue is not whether one comes from outside the Beltway, but whether one has demonstrated the character to resist the pressure to conform to the values of the D.C. elites.

Outsiders aren’t automatically immune to Potomac Fever

Yes, people come to D.C. and fall to the social pressure to change one’s views to get accepted. They want to get invited to the exclusive parties in Georgetown and to be praised in the pages of the Washington Post. And a person’s descent into this liberal “enlightenment” and “growth” usually gets worse the longer one marinates in the D.C. culture.

But that reasoning veers into error when it assumes that an “outsider” will retain permanent immunity from the pull to abandon conservative principles while in D.C. Every “Washington insider” seduced by D.C. elites came from regular America, so that is no guarantee by itself that a person will not succumb.

However, some justices have shown the personal character quality of fortitude to resist the cultural pressure to conform to “D.C. insider” norms. This strength of character can exist in people who come from both outside and inside of D.C.

Think of the Supreme Court justices who in recent years have repeatedly resisted scorn and derision for demonstrating judicial restraint and the discipline to leave the policy arguments to the states and Congress, and declining to impose their personal views through court decrees:  Antonin Scalia, Clarence Thomas, Samuel Alito, and William Rehnquist, for example. All of them were “Washington insiders” before they joined the Court. They had all worked in high positions in the White House or the Department of Justice before they became justices. They demonstrated an ability to resist the pull of Potomac Fever while they worked in the midst of it.

In contrast, many justices who came from “outside the Beltway” to the Supreme Court capitulated to the social and cultural pressure of the Capital City: Henry Blackmun, John Paul Stevens, and David Souter all became predictable liberal votes on the Supreme Court, even though they started out as much more conservative judges during their legal careers in the pristine environs of “regular America.” So starting a legal career in the American heartland does not protect one from mutating into a Washington insider, nor does working in Washington mean one becomes inexorably compelled to abandon foundational principles.

So-called “insiders” have the opportunity to prove they can resist the pressure

Demonstrations of character and fortitude usually occur in situations where one shows a willingness to sacrifice personal advancement and approval in order to stand true for higher principles.

One example of a “Washington insider” demonstrating this courage is Clement’s decision in 2011 to leave his prestigious job at King & Spaulding when that law firm dropped the U.S. House of Representatives as its client because he made clear he would defend the federal Defense of Marriage Act in court.

Rather than abandon his client, Clement resigned, writing that he did so because of his “firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do…. When it comes to lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.”

What he did showed impressive dedication to principle over personal gain or self-preservation, and he’s not the only one. To exclude his name or the name of anyone else who has stood strong from a list of potential Supreme Court nominees because he is supposedly a “Washington insider” grievously misses the value of the solid character he has demonstrated.

Again, the 11 people on Trump’s list all appear to be outstanding candidates. But so are others who have lived and worked in Washington for a long time. The sterling character of Scalia, Thomas, and others was forged in the fiery battles of Capitol Hill, the White House, and in the D.C. media. Our nation should not exclude from consideration future Scalias or Thomases just because they developed their resolute character and convictions inside the Beltway.

Jordan Lorence

Jordan Lorence

Senior Counsel, Director of Strategic Engagement

Jordan Lorence serves as senior counsel and director of strategic engagement with Alliance Defending Freedom, where he plays a key role with the Strategic Relations & Training Team.


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