{"id":3113,"date":"2024-07-15T12:00:19","date_gmt":"2024-07-15T16:00:19","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=3113"},"modified":"2025-12-20T15:58:56","modified_gmt":"2025-12-20T19:58:56","slug":"federal-judicial-selection-after-the-2024-election-robert-luther-iii","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/federal-judicial-selection-after-the-2024-election-robert-luther-iii\/","title":{"rendered":"Federal Judicial Selection After the 2024 Election – Robert Luther III"},"content":{"rendered":"\n
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Federal Judicial Selection After the 2024 Election<\/h2>\n\n\n\n

ROBERT LUTHER III*<\/a><\/h2>\n\n\n\n

As Associate Counsel to the President of the United States during the Trump administration, I had the unique opportunity to be at the forefront of the judicial selection process. Based on that experience, I would like to share some thoughts on what I call \u201cjudicial fortitude.\u201d This is an important and under-covered quality that is necessary in effective judges. Since President Trump\u2019s impact on the federal judiciary, a relentless assault on the courts has proceeded with the goal of eroding the public\u2019s confidence in their legitimacy. Delegitimization is the end game\u2014and this game is dangerous. But those of us involved in judicial selection during the Trump Administration knew these attacks would come, so we emphasized the quality of judicial fortitude in our nominees. And the results speak for themselves.<\/p>\n\n\n\n

So, how do you know if a candidate has what it takes? Everyone around you is going to tell you that their candidate \u201chas what it takes.\u201d For starters, we looked closely at candidates\u2019 records. And I don\u2019t just mean legal work\u2014their entire body of work. 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? Unfortunately, candidates told us they lost clients or even their jobs for representing certain clients or advancing positions in litigation that offended the beltway elite.<\/p>\n\n\n\n

We coupled our full-body record review with an even more rigorous judicial interview that was impossible for candidates to fake their way through. Our Circuit interview was modeled after the Justice Scalia clerkship interview. For about an hour, a very hot bench of around ten White House and DOJ lawyers would ask substantive questions about originalism, textualism, and the separation of powers\u2014(of course, we never asked about specific issues, pending cases, or how they would rule in a case). Some people who went through both the Justice Scalia clerkship interview and our interview said ours was more rigorous. I\u2019m sure Justice Scalia would disagree. We insisted on in-person interviews. We wanted to see if a candidate could handle the pressure, look us in the eye, and convince us. Why did that matter so much? Because we were looking for leaders; judges who would not be intimidated by the press, their colleagues, or even some Stanford Law students. We were looking for candidates with fortitude.<\/p>\n\n\n\n

But fortitude isn\u2019t only important in judicial nominees. It\u2019s also an important quality in the team of lawyers who pick them. The press will seek to undermine you. Senators will disagree with you. Your friends will pressure you.  I want to take this opportunity today, for the first time, to lay out my blueprint for judicial selection in 2024, so that whoever ends up in the role I occupied under President Trump may build on our successes.<\/p>\n\n\n\n

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As we look ahead to 2024, we need to keep judicial fortitude front of mind. Hopefully, 2024 will look a lot like 2016. A Republican president will follow a Democrat president. Republicans will control the Senate. And judicial nominations will be a priority.<\/p>\n\n\n\n

The biggest obstacle any Administration faces when filling judicial vacancies is not the opposition party\u2014it\u2019s time. There is a natural inclination to think that filling judicial vacancies is a \u201creactive\u201d process because a vacancy is required first; but that\u2019s the wrong way to conceptualize this landscape. It\u2019s more accurate to envision an hour glass slowly draining. When the sand runs out, the window of opportunity closes forever.<\/p>\n\n\n\n

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