What kind of judges will Trump appoint?

While speculation swirls over the content of Donald Trump’s presidential agenda, one task that President Trump will surely face once he takes office is to fill the Supreme Court seat that has remained open since Justice Antonin Scalia’s death.

{mosads}Beyond that one seat, many have speculated that, given the age of some of the sitting justices, additional seats could open up during Trump’s term.

Moreover, beyond the Supreme Court, Trump will have the opportunity to appoint numerous lower federal court judges.

What types of judges will Trump appoint to the federal courts?

This will be a product of two factors: First, the characteristics that will attract Trump in identifying judicial nominees and, second, the constraint imposed by having to obtain Senate confirmation of his nominees.

We have some idea as to the sort of individuals Trump will nominate from a list of 21 names the Trump campaign released from which Trump has promised to select a nominee to succeed Scalia.

During the campaign, Trump emphasized that the names were cleared with the Federalist Society. Among the principles on which the Federalist Society was founded are the “principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”

The particular population on the list of 21 potential nominees also provides additional insights.

The individuals on the list are all sitting judges except one: Mike Lee (R), who currently represents Utah in the U.S. Senate. (Another is a sitting Florida Supreme Court justice, Charles Canady, who previously served in the U.S. House of Representatives as a Republican.)

This is consistent with the general trend in appointments to the U.S. Supreme Court over the past few decades. The last Supreme Court justices who was appointed with no prior judicial experience before current Justice Elena Kagan were President Richard Nixon’s simultaneous appointees, Lewis Powell and William Rehnquist. (Harriet Miers, whom President George W. Bush unsuccessfully nominated for the Supreme Court, also had no prior judicial experience.)

The notion of selecting a sitting U.S. senator is rarer still; Harold Burton (R-Ohio), appointed in 1945 by President Harry Truman, provides the most recent precedent.

Also interesting, and distinctive, is the large number of potential nominees who have experience as state, but not federal, jurists.

The traditional path to the U.S. Supreme Court in recent decades has been a seat on a federal court of appeals (most commonly the powerful and prominent U.S. Court of Appeals for the District of Columbia Circuit). Indeed, before President George H.W. Bush appointed David Souter, a longtime justice on the New Hampshire Supreme Court, to the U.S. Supreme Court, he appointed him for a stint on the U.S. Court of Appeals for the First Circuit (a circuit that encompasses New Hampshire).

The last justice appointed with only state judicial experience was Sandra Day O’Connor, appointed by President Ronald Reagan in 1980. Presumably, requiring a judicial nominee first to sit on a federal court provides a president with the opportunity to learn how the judge will rule on issues that come more frequently (or solely) before the federal courts.

Yet of the 21 names on Trump’s list, nine are sitting state Supreme Court justices.

Even the collection of the 11 sitting federal judges on the list is somewhat anomalous. Two of the 11 are federal district judges, and one is a judge on the U.S. Court of Appeals for the Armed Forces — an appellate court, but not an Article III court.

There is some diversity among the 21 names (thanks to an augmentation beyond an original list that was far less diverse). One name — Amul Thapar — is the first federal district judge of South Asian descent, and would be the first Asian-American justice were he elevated to the U.S. Supreme Court.

The question of Senate constraint over the president’s nominations to the Supreme Court is largely a nonissue thanks to the Republicans’ ability to retain Senate control. Still, the Republicans will not have enough votes to defeat a filibuster, so Trump will have to take account of the filibuster threat that Democrats will wield in making Supreme Court nominations.

On the other hand — thanks, ironically, to the Senate Democrats, who voted to change the rules during the Obama administration — the filibuster is no longer available to challenge the president’s nominations to the lower federal courts.

To be sure, senators have long played a large role in the appointment of judges who are from their own states, and can block nominations of which they disapprove. However, insofar as no senators hail from the District of Columbia, the president will have an especially free hand to make appointments to the prominent U.S. Court of Appeals for the District of Columbia Circuit, a traditional testing ground for future Supreme Court justices.

(Again, the Democrats have themselves to thank for this turn of events, since they affirmatively explained their decision to abrogate the filibuster for lower federal court nominations on the charge that Republicans were stalling President Obama’s nominations to the District of Columbia Circuit.)

In sum, Trump’s list of proposed Supreme Court nominees reveals a preference for what many would call more conservative judges.

However, it is also an eclectic list as far as prior experience is concerned. Trump will have considerable freedom to appoint judges of his liking to the Supreme Court, still greater freedom to appoint judges to the lower federal courts, and the greatest freedom of all to fill vacancies on the District of Columbia Circuit.

That said, history has shown that no president can be sure that someone he nominates to a court will in fact vote as the president likes or even expects in all cases, or even in the majority of cases.

The accuracy of President Trump’s vetting process will play an important role in this regard.

Nash is professor of law at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash.

The views expressed by contributors are their own and not the views of The Hill.