Conservative Republicans need to expand their pool of judicial candidates

Eight years ago, Donald Trump’s commitment to appointing conservative judges helped him win the White House. In selecting judicial candidates, the 45th president and other Republicans have rightly prioritized merit — including academic excellence, professional achievement, and a conservative record — recognizing that quotas and preferences undermine the principle of equal opportunity. 

Yet with the prospect of several high-court retirements between now and 2028, Republicans could boost their election chances by promising a broader judicial pipeline. This strategy could in fact help social conservatives in particular to win in the court of law and the court of public opinion.

Legal originalists agree. Justice Clarence Thomas observed in Students for Fair Admissions that “exposure to different perspectives and thoughts can foster debate, sharpen young minds, and hone students’ reasoning skills.”

In Obergefell, Justice Antonin Scalia lamented the court’s “strikingly unrepresentative character” — eight justices hailed from the coasts, and all nine were Ivy League-educated — a composition that contributed to justices becoming legislators of family law.

Upholding both merit and equality, broader recruitment also deepens the bench’s legitimacy, helping the public accept conservative decisions in contentious cases. As Carrie Severino of the Judicial Crisis Network puts it, conservative racial minorities “put a lie to [progressive Democrats’] own identity politics,” the heart of the liberal social agenda.

More minority nominees would therefore be “very helpful,” explains Sen. John Cornyn (R-Texas), because citizens “need to have confidence in the justice system….I think giving everybody a fair shot to serve is important.”

Thomas’s concurrence in the Students for Fair Admissions case underscores this point. Admitting he was “painfully aware [of] the social and economic ravages which have befallen my race,” Thomas nevertheless insisted that the Constitution mandates race neutrality, warning that affirmative action will ultimately harm racial minorities. His vote disarmed critics who would have otherwise responded with headlines such as “White justices ban affirmative action.”

Indeed, as President Donald Trump considered and nominated many conservatives from varied backgrounds, voters noticed. Asian Americans, for instance, applauded even the prospect of one of their own on the Supreme Court. Nevertheless, media outlets regularly alleged that only 15 percent of Trump nominees were minorities. Although that was not the whole story, Republicans have at times passed over conservative minorities in pursuit of other priorities.

Case in point: at the end of Trump’s administration, Indiana arguably had the narrowest bench in the country. The Seventh Circuit had become the nation’s only all-white federal circuit. The state had just one minority federal-district judge, appointed ages ago by President Reagan. Similarly, only one intermediate state-appellate judge was non-white, whereas the state Supreme Court had become all-white.

Why? An African American was dismissed out-of-hand because the contender “wasn’t seen as being out-and-about enough.” Another passed-over candidate was told point-blank that the then-governor “wanted a woman, not a minority.” The rationale: In Indiana, the GOP needed votes from women, not minorities, to win elections.

Patronage also apparently played a role. As an influential Indianapolis law firm made very clear to an Asian American candidate that state powerbrokers had instead selected a white male with donor connections. Those decisionmakers had accepted tens of thousands of dollars from eventual nominees while soliciting donations from other candidates. Prospects of modest means enjoyed fewer opportunities. According to the ABA, less than 3 percent of Indianapolis’s law partners are non-white — the lowest percentage in the country.

Yet this decision to favor electoral politics and money over a bigger pool led to the courts moving leftward in the red Hoosier State on critical social issues. GOP-appointed federal judges blocked Indiana’s restrictions on sex-altering drugs and surgeries for children, a law requiring doctors to advise women considering drug-induced abortions about the possibility of abortion-pill reversals, and bathroom-and-pronoun policies rooted in human nature. State judges appointed by Republicans even voted against pro-life safeguards.

These liberal outcomes in a Republican state confirm the value of expanding the pipeline. Presuming Trump wins in November, his second administration should consider five action items. First, publicly commit to a broader candidate pool, while disavowing quotas and preferences. Outreach sends inclusive messages to those who may fall outside conventional GOP candidate circles.

Second, encourage conservative minorities to apply for clerkships and seek positions in prestigious law firms and government, more clearly qualifying them for judicial appointments.

Third, reduce the influence of money and patronage. Elected officials should not treat lifetime appointments as patronage opportunities for attorneys who donate thousands of dollars or for law firms raising even more.

Fourth, reward minority candidates for community involvement. GOP attorneys should join minority bar associations for networking purposes; those engagements ensure that these bars include conservative viewpoints. In the Fair Admissions case, both Chief Justice John Roberts and Justice Thomas endorsed a genuine, individualized assessment of candidates’ respective life histories, heritages, and cultures.

Finally, judges must not be allowed to pick their own successors. No administration should incentivize judicial retirements in exchange for succession by former clerks. Mirroring “legacy preferences,” such rumored dealmaking violates the separation of powers — and arguably the judicial code of conduct — while disadvantaging minorities, who enjoy fewer clerkship opportunities.

With a bigger pool that upholds conservative credentials over patronage, Republicans would continue to nominate outstanding judges, increase public confidence in the justice system, and appeal to more Americans, all while serving the cause of constitutionally sound, socially conservative jurisprudence.

Robert W. Patterson served as an associate commissioner at the Social Security Administration from 2017 to 2019. Timothy J. Rushenberg is general counsel of a nationwide asset-recovery and recycling company in Indiana under Governor Mitch Daniels.