Many Americans voted for Donald Trump because they believed him when he promised to appoint a justice to the Supreme Court of the United States similar in philosophy to the late Justice Antonin Scalia. That bet paid off bigly when President Trump appointed Justice Neil Gorsuch to the Court.
Yet Trump, through his recent identification of additional judges he intends to nominate for the lower federal courts,has signaled he will deliver even greater returns to the voters who pulled the lever for him. By recently announcing a slate of experienced and highly qualified individuals for appointments to the lower federal courts, President Trump has shown he intends to remake the federal judiciary by appointing judges who respect the rule of law and understand their role under our Constitution’s separation of powers.
Obviously the nine justices of the Supreme Court have the final say on what the law is, to paraphrase first Supreme Court Chief Justice John Marshall. But judges of the lower courts also address disputed questions of fact and law each and every day, questions the High Court may not answer for years—if ever. These questions impact where our children go to school, what conditions we face at work, what burdensome regulations the government may or may not impose on a business, and more. Therefore, the judges on those lower courts should have the same respect for the law that Trump promised his Supreme Court nominees would possess.
The President’s first nominee to the federal appeals courts—Judge Amal Thapar—also appeared on Trump’s short list for Justice Scalia’s seat, and with good reason.
Appointed by President George W. Bush to the Eastern District of Kentucky court in 2007, Judge Thapar has demonstrated fidelity to the text of the laws passed by Congress and the text of the Constitution and Bill of Rights authored by our Founding Fathers. In one case, Judge Thapar emphasized both the Fifth Amendment and the right to earn a living, two rights at the heart of America’s system of ordered liberty. He wrote: “Property rights matter. So too do the efforts of coal companies: They offer employment to millions and provide affordable energy to consumers.”
In setting the table for his decision with those words, Judge Thapar signaled that neither property rights nor the rights of miners should be disregarded lightly. What a change from the last eight years! In the last eight years, both property rights and business-owner rights—particularly businesses engaged in coal mining—have seen their rights disregarded virtually entirely by our federal government.Nominating Judge Thapar for a federal appeals court slot reflects that President Trump knows that both property rights and the right to earn a living make our country great, and that Trump will steer a very different course for our courts than the previous administration.
Other judges nominated by President Trump similarly reflect Trump’s determination to appoint judges like Scalia.Two of Trump’s nominees include former Justice Scalia law clerks: Professor Amy Coney Barrett of Notre Dame University Law School, and Justice Joan Larsen of the Michigan Supreme Court. Another nominee, David Stras of the Minnesota Supreme Court, clerked for Justice Clarence Thomas. Each of these nominees learned from the best that the role of the judge is to interpret the text of the laws and the Constitution, not put their own policy preferences into the law to reach the result they prefer.
Nominating learned individuals like Professor Barrett, Justice Larsen, and Justice Stras establishes that this Administration recognizes the importance of all the federal courts, not just the Supreme Court. To further make that point, when the White House announced President Trump’s latest slate of nominees, it included on the list Damien M. Schiff as a nominee for the United States Court of Federal Claims. Mr. Schiff, who argued and won a unanimous decision at the Supreme Court in a case known as Sackett v. EPA, works for a legal foundation that does nothing other than litigate for private property rights, liberty, and justice for all.
The President promised to replace Justice Scalia with someone who saw the law in much the same way that Scalia did. But with this latest list of nominees, he has shown that he will give the country a judiciary full of Scalia’s. If he does nothing else, those who voted for him owe him a debt of gratitude for the respect for the rule of law that these appointments reflect.
Mark Miller is the Managing Attorney of Pacific Legal Foundation’s Atlantic Center in Palm Beach Gardens. Pacific Legal Foundation is a non-profit organization that litigates on behalf of landowners and their constitutional rights at no charge.