Trump’s Judicial Nominees Largely Avoid Answering Whether He Can Run Again
Only a few nominees have directly responded to clear yes or no questions on the subject.
During a House Republican retreat at the Kennedy Center this week, Trump continued fantasizing about serving as president for a third term. “I could have the most unbelievable four years, and I guess I’m not allowed to run. I’m not sure — is there a little something out there that I’m not allowed to run? But let’s assume I was allowed to run…There’s gonna be a constitutional movement,” he said.
Trump cannot run again. And several senators on the Senate Judiciary Committee have questioned his judicial nominees in writing about whether they agree.
Senator Chris Coons has asked 33 judicial nominees the following question: Is President Trump eligible to be elected President for a third term?
To date, only two judicial nominees have directly responded “No.” Whitney Hermandorfer, the very first judicial nominee of Trump’s second term who is now a judge on the Sixth Circuit, answered “No. See U.S. Const., amend. XXII (‘No person shall be elected to the office of the President more than twice….’).” William Mercer, who is now serving on the District of Montana, responded “No. The 22nd Amendment to the Constitution states that ‘[n]o person shall be elected to the office of the President more than twice….’”
Senator Coons, tired of most nominees simply reciting the language of the amendment, has added the following to his question for the last six nominees: “Assume that I know what the text of the 22nd Amendment says. I am interested in your application of that text to whether or not President Trump can be elected President in 2028.” The way that nominees have responded hasn’t changed.
Senator Cory Booker has asked 33 judicial nominees a similar question, posing it this way: Do you agree that the 22nd Amendment, absent a constitutional amendment, prevents President Trump from running for a third presidential term?
Here again, only two judicial nominees have responded with “Yes.” Kyle Dudek, who was appointed to the Middle District of Florida, replied that “Yes. The 22nd Amendment to the Constitution provides that ‘[n]o person shall be elected to the office of the President more than twice.’” And again, William Mercer gave a straightforward answer. He similarly said “Yes. The 22nd Amendment to the Constitution states that ‘[n]o person shall be elected to the office of the President more than twice….’”
Senator Dick Durbin, the ranking member of the committee, has also asked nominees about this. But his question — Does the U.S. Constitution permit a president to serve three terms? — doesn’t mention Trump, and nominees haven’t been dragging him into their responses.
Zachary Bluestone, now serving on the Eastern District of Missouri, answered all three questions identically, saying “The text of the Twenty-Second Amendment speaks for itself.” — not a yes or no, but it stood out among the other responses.
Interestingly, it’s been about five months since any nominee has said “Yes” or “No” to these questions — suggesting that they have been instructed not to directly answer that way, that they feel increased pressure to show their loyalty to the president, or that they are simply bad at answering yes or no questions.
Most nominees have just been stating what the 22nd Amendment says. And many add some sort of statement about being restrained from answering, calling it a “hypothetical scenario,” “abstract question of law,” or “ongoing political dispute.” This list is not exhaustive, but here are some examples:
Josh Divine: I have not reviewed any case law or other authorities addressing or interpreting this Amendment, nor formed an opinion on how it might apply to any particular facts. To the extent the question asks about current political disputes, it would be improper for a judicial nominee to promise or forecast how he or she would rule in a case that might come before him or her.
Cristian Stevens: As a nominee to a U.S. District Court, I think drawing a legal conclusion regarding whether a president is eligible to be elected for a third term would be inappropriate, particularly considering this is an abstract question of law that could arise in the future.
Emil Bove: As a nominee to the Third Circuit, it would not be appropriate for me to address how this Amendment would apply in an abstract hypothetical scenario. To the extent this question seeks to elicit an answer that could be taken as opining on the broader political or policy debate regarding term limits, or on statements by any political figure, my response, consistent with the positions of prior judicial nominees, is that it would be improper to offer any such comment as a judicial nominee.
Anne-Leigh Gaylord Moe: To the extent this question invites an opinion about individualized or hypothetical questions that could arise in a case assigned to me if I am confirmed, as a sitting judge and a judicial nominee it would be inappropriate for me to comment further.
Chad Meredith: And to the extent that this question is eliciting an opinion on specific political debates or statement made by any political figures, it would be inappropriate for me, as a judicial nominee, to offer such an opinion.
Bill Lewis: I am unaware of any precedent or Supreme Court interpretation of this portion of the Amendment, and I will not speculate on any particular fact pattern. To the extent the question asks about political disputes, it would be improper for a judicial nominee to promise or forecast how he or she would rule in a case that might come before him or her.
Eric Tung: To the extent this question seeks an opinion on how the Amendment would be applied to a particular case that could come before me, it would be inappropriate for me as a judicial nominee to answer.
Robert Chamberlin: To the extent the question asks about political disputes, it would be improper for me, as a judicial nominee, to comment on any ongoing political dispute.
Nick Ganjei: Beyond this, this question calls for a response that could be seen as opining on a future case, and I cannot provide such an answer consistent with my ethical obligations as a judicial nominee. See Code of Conduct of U.S. Judges, Canons 3(A)(6), 5.
Brian Lea: To the extent this question seeks an opinion on a broader political or policy debate, or on statements by any political figure, my response, consistent with the responses of prior judicial nominees, is that it would be improper to offer any such comment as a judicial nominee.
As I’ve written about many times, all 33 judicial nominees during Trump’s second term (who have already responded to written questions) have refused to say that Trump lost — or that Biden won — the 2020 election, and they have all dodged any question related to January 6.
The way that most nominees have responded to questions about a third Trump term appear to demonstrate yet another show of loyalty to the president.
To access written responses, see: Hermandorfer | Divine | Stevens | Bluestone | Bove | Artau | Lanahan | Dudek | Mascott | Mooty | Moe | Mercer | Meredith | Taibleson | Lewis | Pratt | LaCour | Tung | Dunlap | Chamberlin | Maxwell | Bragdon | Rodriguez | Freeman | Orso | Van Hook | Crain | Ganjei | Peterson | Fowlkes | Olson | Lea | Benton