The Senate is heading into the final stretch of judicial confirmations for this Congress. Up for hearings are some fantastic nominees I want to highlight, such as Lee Rudofsky (Eighth Circuit), Zach West (N.D., Okla.), Sam Adkisson (E.D., Tenn.), Phil Axt (D.N.D.), Jesus Osete (W.D., Mo.), and Bradford Kelley (E.D., La.). These are great picks for important spots.
What’s particularly impressive is that these are all picks that bridge the growing divide on the right when it comes to judicial nominations. Because nominees from Trump 45 don’t always and everywhere rule for Donald Trump, some opportunists have taken to attacking them falsely as liberals or RINOs. Professor Rob Luther at Scalia Law has done a great job of refuting these allegations and I’ll have more to say about it presently elsewhere, but it’s a political dynamic at play and one that’s growing.
The reality is that it’s a scurrilous charge that “Federalist Society types” make for bad or weak judges. Yes, Federalist Society types are unlike their analogues on the left in that they believe in the rule of law and don’t see the judiciary as simply another vector for the exercise of political power, but that’s a good thing. As I’ve said to journalists trying to substantiate claims that Trump 47 is markedly different from Trump 45 on judicial nominations, the apples may be different, but they’re being picked from the same cart. You see few professors in Trump 47, for example, and a lot of people with political experience. But all told they’re still highly intelligent, highly qualified, Federalist Society judges.
The picks I’ll be profiling are very much cast from that mold. As I explained at some length to Sarah Isgur and David French on the Advisory Opinions podcast, in the pre-filibuster days, the judicial picks tended to be politically connected sitting judges. Post-filibuster they tend to be highly credentialed committed originalists. Getting to the point where a Republican president can pick — and a Republican Senate will confirm — principled originalists across the board was the entire point of Mitch McConnell’s decades-long judicial war, in which nearly every Republican Senator played his or her part.
These picks are the fruit of that labor. Furthermore, they have the kind of political experience that strongly suggests they’ll apply their principled originalism with an eye toward practical reality, in the style of Justice Alito. It’s what the Romans called utilitas, with which sound jurists tempered cold and analytic ratio. In other words, these are picks that should make everyone on the right happy: both traditional Federalist Society actors and the johnny-come-lately critics of the judicial project.
There’s no reason for Republican senators to have any qualms about these picks apart from a desire to return to the bad old model of cronyism and mediocrity — a model Senate Republicans spent decades working with McConnell to bury, and whose loss liberal commentators continue to mourn.