Originalism Must Guide Trump’s Second-Term Court Picks—No Exceptions
Constitutional questions test judicial philosophy as Americans debate the role of unelected judges.
Republicans win elections to secure the Constitution, not to outsource it to whichever legal fashion dominates elite law schools. With President Trump beginning his second term and judicial vacancies already stacking up, the next round of appointments will decide whether originalism stays a governing commitment or becomes a campaign slogan. This moment matters because the courts are now the country’s choke point for every culture war and every executive overreach.
The immediate development is plain: the White House and Senate Republicans are preparing a new slate of nominees for appellate seats, and the rumor mill is already pushing “consensus” judges who promise calm, not courage. We have seen this movie before—polite credentials, vague speeches, and then a jurisprudence that bends with the headlines.
Republicans should not accept a repeat.
Originalism is not a talking point; it is the only honest way to interpret a written Constitution in a self-governing republic. The alternative is government by courtroom improvisation—nice when you win, brutal when you lose. Conservatives should say it without apology: judges are not commissioned to update the nation’s charter to match the mood of the faculty lounge.
The Supreme Court has proved the stakes in the last three years. In Loper Bright Enterprises v. Raimondo (2024) and Relentless, Inc. v. Department of Commerce (2024), the Court ended Chevron deference and restored the basic separation-of-powers truth that agencies don’t get to “interpret” their way into lawmaking.
That is originalism doing real work for small businesses, workers, and families who can’t hire a compliance department to survive the next regulatory “guidance.”
In Trump v. United States (2024), the Court recognized a core constitutional reality about presidential functions and the separation of powers, even as the commentariat screamed “above the law.” Originalists do not defend any politician’s ego; they defend the Constitution’s structure so prosecutors and judges cannot rewrite election outcomes through creative theories. When legal elites can criminalize politics by novelty, the people stop governing.
Then there is United States v. Rahimi (2024), where the Court kept the Second Amendment anchored to history while allowing narrow restrictions that fit constitutional tradition.
That decision shows why originalism is not anarchism. It is constraint—constraint on judges first, and by that constraint, legitimacy for the law.
The Senate’s Job Is Not Theater
The Senate must stop treating confirmation as a messaging opportunity and start treating it as a constitutional duty. Advice and consent is not a courtesy to the president; it is the last serious checkpoint before a lifetime appointment.
That means fewer cable-news auditions and more insistence on a nominee’s interpretive method.
A nominee who hides behind “I will follow precedent” is not answering the question. Precedent matters, but it is not scripture, and it is not always right—Brown v. Board of Education corrected Plessy, and Dobbs v. Jackson Women’s Health Organization (2022) corrected Roe.
Republicans should demand nominees who can explain, plainly, that precedent is weighed against text, history, and the Constitution’s allocation of powers.
The confirmation standard should be equally plain: no “living constitutionalists,” no “evolving standards” rhetoric, and no soft-focus promises about “empathy” as a substitute for law. If Republicans appoint judges who treat the Constitution as negotiable, Republicans become accomplices to the very judicial supremacy we campaign against. That sentence should be the litmus test.
This is where legislative follow-through matters. Senate Republicans should revive the discipline behind the 2017 use of the “nuclear option” for Supreme Court nominees and apply the same seriousness to the appellate courts, where most cases are actually decided. And they should pair confirmations with jurisdictional and venue reforms—yes, including curbing nationwide injunction abuse that lets a single district judge function as a shadow cabinet.
The Litmus Test Is Fidelity
The right question is not whether a nominee is “moderate” but whether the nominee is faithful. Does the nominee accept that Article I vests legislative power in Congress, not agencies? Does the nominee acknowledge that enumerated powers mean limits, not suggestions? Does the nominee read the First Amendment as protecting religious exercise and speech even when progressive institutions demand silence?
Republicans should also be honest about what the left is doing right now. Progressive activists are openly shopping for state-court theories and ballot-access maneuvers to win what they cannot win at the ballot box, and they have learned to exploit sympathetic benches. We already watched lawfare metastasize in the last cycle; we should not pretend it will recede out of goodwill.
That is why judicial selection must favor demonstrated originalists—judges and scholars with a record of textual reasoning, not just the right donor list. The Federalist Society has helped surface talent, but Republicans should broaden the pipeline: more state judges, more experienced trial lawyers, more veterans, more public defenders and prosecutors who respect rights and rules.
The point is not pedigree; the point is proof.
There is also a lesson from the Court’s recent administrative-law pivot: without originalist judges, Congress will never regain its spine. Ending Chevron pushes responsibility back onto lawmakers, where it belongs, and forces real debate over rules that touch every paycheck and every farm.
That is a conservative win only if the bench continues to insist that law is made by elected representatives.
Republicans should pair judicial appointments with a legislative agenda that reinforces constitutional governance. Pass a targeted injunction reform bill. Advance a strengthened REINS-style proposal requiring major regulations to receive an up-or-down vote in Congress. And when Democrats claim those steps are “anti-democratic,” Republicans should answer: no, unelected regulators and roving judges are what’s anti-democratic.
The politics are not complicated. The base is tired of watching Republicans win office and then govern as if the courts are an afterthought. A second Trump term gives Republicans an opening to build a durable constitutional bench—if we stop elevating resume sheen over interpretive steel.
Republicans should act now, before vacancies become emergencies and emergencies become excuses. Demand nominees who speak clearly about text, history, and limits, and refuse those who treat the Constitution as a set of aspirations to be updated by experts. Confirm aggressively, legislate responsibly, and tell voters the truth: constitutional order is not self-sustaining.
The next step is discipline. The White House must send names that satisfy the movement’s core promise, and the Senate must confirm them with speed and seriousness—no drift, no diversions, no surrender to editorial boards that despise the project. If we want a republic ruled by laws and not by judges’ feelings, we must appoint judges who believe the Constitution means what it says.