The return of President-elect Donald Trump to the Oval Office gives him the unique opportunity to reshape a federal judiciary that has already been forever changed by his first term in office, while opening the doors to a new team of experts ready to help him confirm more judges.
During the 2016 presidential campaign, Trump had already begun teasing a roster of possible Supreme Court nominees by May of that year, drafted in part with the help of then-Federalist Society Vice President Leonard Leo, in the wake of a historic opportunity to appoint the successor to the late Antonin Scalia.
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But unlike eight years ago, the 2024 Trump campaign has been conspicuously silent about its strategy for remaking the courts in his second term, even though Trump has the chance to fill over 100 vacancies over the next four years.
David Lat, founder of the legal news site Above the Law, speculated that Trump’s 2024 campaign strategy may have intentionally avoided details about possible judicial appointments. “In some ways, I think he’s trying to reserve discretion to make more unpredictable appointments,” he told the ABA Journal last month.
By the end of his first term, Trump cemented a 6-3 Republican-appointed majority on the Supreme Court and appointed a total of 234, the second-most appointments of any president in a single term, with the help of vital allies such as then-Senate Majority Leader Mitch McConnell (R-KY) and former White House counsel Don McGahn, the latter who also sits on the Federalist Society board of directors with Leo.
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Could a staunch MAGA ally be the next judiciary whisperer?
It’s no secret that the relationships between Trump and figures who shaped his judicial nominations during his first go-around have been strained. The Washington Post wrote in February that the then-candidate Trump was not on speaking terms with the lawyers closest to his judiciary strategy in the first presidency.
Amid this falling out, a rising star who could take up the Leo mantle, Article III Project founder Mike Davis, has participated in somewhat of a public interviewing process for the role via his relentless online posts calling for Trump to name “bold and fearless” judges.
“I mean, people are urging Trump, like Mike Davis, to do ‘MAGA’ judges loyal to Trump,” University of Richmond Law School professor Carl Tobias said. “Now maybe that’s all blowing smoke, but he’s always, I think, pretty serious.”
After Trump won reelection, Leo issued a rare public statement revealing the rift between influential figures who have concerned themselves with judicial nominations. Leo pushed back on pundits who immediately began speculation about possible retirements of sitting members such as Justices Samuel Alito or Clarence Thomas — both of whom have not signaled their plans to step down. That remark was juxtaposed by Davis when he made a speculative post on X that Alito might be “gleefully packing up his chambers” in anticipation that Trump could name the 74-year-old George W. Bush appointee’s successor.
Due to these rifts between Trump and his former judiciary reshaping team, Lat said, “It’s unclear how much influence the Federalist Society or its members will have over the incoming president’s judicial nominations in a second term.”
Davis, a former chief counsel for judicial nominations to Sen. Chuck Grassley (R-IA), has not been afraid to wade into more contentious issues that others in Trump’s orbit might hesitate to comment on. He predicted early on that Trump would survive the “weaponized” criminal cases against him during the campaign, and on more hot-button issues like the Jan. 6 Capitol riot, Davis has made it clear that Trump should “pardon all Jan. 6 defendants.”
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In addition to calls to name “bold and fearless” judges, Davis repeated the same line regarding Trump Cabinet nominees such as defense secretary pick Pete Hegseth. Davis, who frequently appears on Steve Bannon’s War Room web show, has played a crucial role in leading a grassroots effort to see Hegseth confirmed after multiple scandals have plagued the nominee’s confirmation prospects since the former Marine and news personality was nominated.
But Davis himself has kept a humble attitude when confronted about his prospects to be Trump’s next judicial whisperer. When asked whether he is going to fulfill that role, he told the Washington Examiner he is not trying to get ahead of Trump’s own plans but that he is looking forward to helping out the new administration.
“The Article III Project has been President Trump’s most loyal and effective ally on judges and lawfare, and we look forward to working closely with him, Susie Wiles, Dave Warrington, Pam Bondi, and their teams to help him pick, confirm, and defend even more bold and fearless judges in President Trump’s second term,” Davis said.
Judicial fortitude: A key trait for Trump’s next nominees
Robert Luther, who served as associate counsel to Trump during his first term and also assisted in the judicial nomination process, has emphasized the importance of “judicial fortitude” in nominees — judges willing to stand firm under pressure from the media, colleagues, or ideological opponents.
Luther told the Washington Examiner he expects “a lot of the same” strategies Trump utilized with Leo and other experts who helped shape the courts in his first term.
From the start of the first administration, Luther said his team scrutinized nominees’ entire body of work to ensure they had the fortitude to withstand external pressures, according to a July publication for the Harvard Journal of Law and Public Policy. “When did you stand for principles and pay the price? When someone asked for help, to what lengths did you go to promote the principles we share?” Luther posed as example vetting questions.
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When asked whether he could see Trump relying on experts within Davis’s group, the Article III Project, Luther said it is absolutely a possibility.
“Every White House, on both sides, listens and takes information from and consults with outside groups,” Luther said, adding, “This is an open process in a lot of ways. We want the best candidates, and we’ll take suggestions from anyone,” saying these outside advice groups “are helpful.”
Incoming Trump administration official Mark Paoletta said, “My sense is that Mike Davis will be a key outside adviser to President Trump in the judicial selection process.”
“Mike’s been extraordinarily effective in the judicial confirmation wars since 2017 and knows what is needed in nominees and how to confirm them,” said Paoletta, who is tapped by Trump to be general counsel for the Office of Management and Budget.
The role of conservative legal networks
The Federalist Society, while not advocating specific nominees or taking policy positions, remains deeply entwined with the broader conservative legal movement.
At its November 2024 National Lawyers Convention, prominent Trump-appointed judges took center stage, moderating panels and giving speeches on judicial independence and originalism. Judges James Ho, Neomi Rao, Andrew Oldham, and Kyle Duncan, all appointees of Trump’s first term, are frequently discussed as possible Supreme Court picks should a vacancy arise.
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Several legal experts have suggested in comments to the Washington Examiner that Leo is not likely to play an outsize role in the process this time. Meanwhile, the discussion surrounding Leo’s absence from this process has elevated discourse about whether Trump might attempt to pick judges outside of the Federalist Society’s network.
A current Federalist Society member who spoke to the Washington Examiner lauded the group’s robust network of conservative-leaning lawyers, judges, and bipartisan guest speakers. But the source also mentioned that the group has become more of a “resume builder” across the legal community and has left itself vulnerable to more liberal-leaning infiltration, a sentiment that could stand at odds with the ultra-right-wing pedigree Trump seeks for judges in his next term.
Trump’s confirmed justices, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, all got their roots in the Federalist Society. All three have regularly attended or participated as guests of honor in recent years at the annual Antonin Scalia Memorial Dinner in Washington, D.C.
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Despite concerns expressed by the incoming Trump administration source, not everyone is convinced that Trump’s strategy is going to alter much of the groundwork strategies that Leo executed in Trump’s first term.
Several longtime members of the Federalist Society interviewed by the Washington Examiner were quick to note that Trump might encounter hurdles if he plans to avoid the network consciously, given how vast it extends beyond Washington into different chapters across public universities.
“All the people Trump could conceivably pick for the Supreme Court are FedSoc members in good standing,” South Texas College of Law professor Josh Blackman told the ABA Journal last month, pushing back on a “false narrative” that the Federalist Society’s influence is somehow waning across the legal community.
Paving the way for an even more conservative judiciary
Trump’s ability to reshape the judiciary further will hinge on the availability of judicial vacancies, which experts say are not likely to allow Trump the ability to confirm more than 200 justices, but could reasonably see him land another 150 lifetime appointments to lower courts.
In his first term, Trump helped form conservative majorities in six federal appellate courts and entrenched a conservative judiciary at the nation’s highest court that embraced originalist legal philosophies held closely by stalwart figures such as Scalia.
Now, with Republicans set to retake the Senate, Trump faces an opportunity to build on that legacy. Currently, around 47 judicial seats are vacant, with 20 more expected to open as judges transition to senior status. Though outgoing President Joe Biden has nominees pending for 28 of those seats, an additional 247 judges will become eligible for semi-retirement over the next four years, according to the American Constitution Society.
Davis has pointed to figures such as Florida-based U.S. District Judge Aileen Cannon, known for dismissing the classified documents case against Trump, and Judge Kathryn Kimball Mizelle, who struck down the Biden administration’s COVID-19 mask mandate, as just a few examples of the type of judges Trump should promote.
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‘Closest thing to permanency in politics’
As Trump transitions back to the White House, his approach to judicial nominations will likely balance lessons from his first term with the unique dynamics of 2025. By focusing on nominees with proven records of judicial fortitude, streamlining the selection process, and leveraging public narratives, the Trump administration has an opportunity to replicate and expand its judicial legacy until at least 2045.
“Judges are the closest thing to permanency in politics,” Luther said. For Trump, that permanency could once again define his presidency.
