One of the biggest reasons Republicans of all stripes have come together in support of President Donald J. Trump is his ongoing transformation of the federal judiciary from a rubber stamp for liberal causes to an independent branch of government with respect for the principles of the Constitution. This Constitution’s prescription of the Senate’s exclusive role in confirming Trump’s choices for the courts has resulted in an otherwise unlikely pairing of a Swamp-Draining President with an honorary chief of the Republican Establishment in Senate Majority Leader Mitch McConnell to accomplish what we hope is a continuing restoration of constitutional liberty.
An introduction to the people nominated by President Trump for the most important roles, short of a seat on the Supreme Court itself, may help us understand better the significance of this development and whether the impact on the advancement of conservative and constitutional liberties is as great as our hopes. In other words, by learning a bit more about the folks selected for the court of last resort in about 99% of all cases and controversies, we can better assess whether President Trump has succeeded in reshaping the judiciary for generations or whether he has simply halted the decline. For example, to what extent can we expect a greater sympathy to the arguments of original intent and strict construction as new challenges to restrictions on abortion bubble up?
Today begins the first installment of a series of short articles introducing each person nominated by President Trump to the federal courts of appeals. Hopefully, a larger picture can emerge from this series so we can better assess Trump’s performance of his constitutional duty to nominate judges to the federal courts of appeals, and whether a sub-optimal performance, if any, has anything to do with the practical considerations of having to obtain the advice and consent of a Senate that is barely Republican.
The first entry is President Trump’s first nominee to the federal courts of appeals, Amul Thapar, Judge of the United States Court of Appeals for the Sixth Circuit. Nominated March 21, 2017 and confirmed 52-44 on May 25, 2017, Judge Thapar is a Berkeley Law grad who worked his way up the ladder by first clerking at the district court level, then clerking in the same Sixth Circuit to which he was later elevated. After completing his clerkships, for two years he served pro bono the Becket Fund for Religious Liberty, an organization whose motto is to “defend the free exercise of all faiths.” Like the esteemed managing editor of this site, Judge Thapar is a convert to Catholicism.
Judge Thapar then served as an assistant U.S. Attorney, as a U.S. Attorney, and as a district court judge appointed by President George W. Bush before his elevation to the Sixth Circuit. In his hearing on whether to elevate him to that circuit, Judge Thapar agreed with Senator Richard Blumenthal (D-CT) that “Roe v. Wade is long-established and well-accepted precedent.” When Senator Blumenthal then asked whether he agreed that Roe v. Wade is “not to be disturbed as a matter of stare decisis,” Judge Thapar replied simply yet cryptically that he would “follow the law” and that Senator Blumenthal “will never have a reason to say I didn’t follow the law.” Judge Thapar shed a little light on that in a case on March 12, 2019, co-signing the majority opinion in Planned Parenthood vs. Hodges: “Medical centers do not have a constitutional right to offer abortions.”
Based on this limited snapshot of Judge Thapar, I am optimistic that he represents one example of the kind of jurist who will indeed play a significant role in the larger movement to reshape the federal judiciary back into its intended place in our republic. As we explore other names on this list in future articles, we will learn whether this judge represents the rule or the exception in that regard.
Next up: Judge John K. Bush