如果特朗普再获提名大法官机会,MAGA 派系想要一名忠诚派多年来,大法官候选人一直避免谈论他们可能会如何判决。特朗普对其首任期提名人的不满可能会改变这一惯例。
If Trump Gets Another Supreme Court Pick, MAGA Wants a Loyalist For years, Supreme Court aspirants have avoided talking about how they might rule. Trump’s frustrations with his first-term picks could change that.
现任联邦上诉法院法官就何种人选应被提名为大法官提出建议,这极为罕见。
It is rare for a sitting federal appeals court judge to offer advice on what kind of people to nominate to the Supreme Court.
但本月早些时候,一位特朗普任命的联邦法官在华盛顿的一个活动上直言不讳地批评了大法官们近期的裁决,并就他所谓的“基于《圣经》的司法选拔原则”提供了指导。
But speaking at an event in Washington this month, a Trump-appointed federal judge bluntly criticized recent rulings from the justices and offered guidance on what he called “biblically based principles of judicial selection.”
詹姆斯·C·霍大法官表示,理想的大法官提名人应当谦逊、诚实——且在意识形态上保持一致。也就是说,他说,“是始终与我们站在一起的那些人之一”。被认为在可能的大法官提名名单上的霍法官补充说,总统应当挑选“目标不是登上法官宝座,而是进天堂”的法官。霍法官在《圣经博物馆》举行的一个基督教活动家聚会上发表了上述言论,相关视频上周被发布到网上。
The ideal Supreme Court nominee, said Judge James C. Ho, would be humble and honest — and ideologically consistent. That is, he said, “one of the men who have been with us the whole time.”Considered himself to be on the shortlist for a possible Supreme Court nod, Judge Ho added that presidents should choose judges “whose goal isn’t to get onto a bench, but to get into heaven.”Judge Ho delivered the remarks, which were posted online last week, to a group of Christian activists meeting at the Museum of the Bible.
他的言论反映了特朗普先生及其基本盘共同的挫败感:最高法院拥有六名保守派大法官组成的超级多数——其中三位是特朗普先生任命的——却未能一致支持他的议程。
His comments channeled frustrations shared by Mr. Trump and his base that the Supreme Court’s six-judge conservative supermajority — three of whom are Mr. Trump’s appointees — have failed to uniformly back his agenda.
尽管在堕胎、持枪权和选区划分等问题上取得了一系列保守派胜利,但在特朗普阵营的右翼人士看来,大法官布雷特·M·卡瓦诺、艾米·科尼·巴雷特和尼尔·M·戈萨奇正变得像大法官安东尼·M·肯尼迪和大卫·H·苏特那样,成为不可靠的中间派摇摆票——用网络流行语来说就是“软蛋”。
Despite a string of conservative wins on abortion, gun rights, and gerrymandering, there is a sense on the Trump-aligned right that Justices Brett M. Kavanaugh, Amy Coney Barrett and Neil M. Gorsuch are becoming unreliably centrist swing votes — “squishes” in the online parlance — in the mold of Justices Anthony M. Kennedy and David H. Souter.
特朗普的两名大法官提名人投票反对他的关税政策,一名反对他解雇美联储理事的尝试,两名反对他重新定义出生公民权的努力。
Two of Mr. Trump’s appointees to the Supreme Court voted against his tariffs, one opposed his attempt to fire a Federal Reserve governor and two opposed his effort to redefine birthright citizenship.
当这些大法官投票反对他时,特朗普曾称其首任期的大法官提名人为“蠢货”、“哈巴狗”以及“并非我面试的那些人”。
Mr. Trump has called his first-term Supreme Court picks “fools,” “lap dogs” and “not the people I interviewed” when they have voted against him.
目前尚不清楚法院何时可能出现另一处空缺。尽管如此,对这些摇摆记录的担忧,正在塑造关于特朗普可能提名谁的私下讨论。这些担忧也可能正在影响那些潜在候选人如何处理这一微妙任务,以便为争取提名做好定位。
It is unclear when the court might have another vacancy. Still, worries about those wavering track records are now shaping the quiet conversations about who Mr. Trump might pick. And they may also be influencing how those likely candidates are approaching the delicate task of positioning themselves to get chosen for the job.
填充特朗普首任期最高法院候选名单的男男女女——何志武法官便在其中——大多是与联邦党人协会(Federalist Society,一个成熟的法律团体)关系紧密的传统保守派。
The men and women who populated Mr. Trump’s first-term Supreme Court shortlists — Judge Ho among them — were mostly traditional conservatives with strong ties to the Federalist Society, an established legal group.
但许多关注司法界的人士认为,特朗普现在更有可能青睐他在第二任期中提拔为法官的若干名前私人律师,以及其他能够展现出对其议程表现出忠诚记录的人选。
But many people who watch the judiciary believe Mr. Trump would now be more likely drawn to one of a number of former personal lawyers whom he has elevated to the bench during his second term, and to others who can show a demonstrated track record of loyalty to his agenda.
特朗普已将三名前私人律师——埃米尔·博夫三世、马修·亚历山大·施瓦茨和贾斯汀·丹尼尔·史密斯,他们都在40多岁——提名为上诉法院法官。他还任命了一名作为他的联邦政府首席大法官。还有艾琳·M·卡农法官,她让一起威胁到特朗普2024年参选资格的、涉及特朗普保留机密文件的刑事案件脱轨。重返白宫后,特朗普称她为“法官应有的绝对典范”。
Mr. Trump has made three of his former personal lawyers — Emil Bove III, Matthew Alexander Schwartz, and Justin Daniel Smith, all in their 40s — appeals court judges. He named a fourth as his solicitor general. There is also Judge Aileen M. Cannon, who derailed a criminal case on Mr. Trump’s retention of classified documents that threatened his 2024 candidacy. After retaking the White House, Mr. Trump called her “the absolute model of what a judge should be.”
领导一个亲特朗普非营利倡导团体的迈克·戴维斯表示,特朗普首任期的提名人选“有时会让我们失望”,特别是在出生公民权案件中,三人中的两人“表现出的懦弱,将成为特朗普在第二任期挑选法官时的教训”。他说,特朗普现在的理想人选将是“大胆无畏的法官”,他们相信宪法赋予“由全体美国人选出的总统‘行政权力’——所有的行政权力”。许多保守派认为,特朗普可能有机会再提名至少一名大法官。
Mike Davis, who leads a Trump-aligned nonprofit advocacy group, said Mr. Trump’s first term picks “disappoint us from time to time,” particularly on the birthright citizenship case, in which two of the three “showed a cowardice from which Trump will learn when picking judges in his second term.”
在接受采访时,76岁的大法官塞缪尔·A·阿利托二世承认,他每年都会考虑是否退休。他最近告诉彭博社,计划至少服务到明年夏天法院本届任期结束。然而,如果民主党在周二的中期选举中赢得参议院控制权,他可能会面临巨大压力,被迫立即辞职,让特朗普先生在共和党于1月失去对参议院的控制权之前挑选他的继任者。
Mr. Trump’s ideal picks now, he said, would be “bold and fearless judges,” who believe that the Constitution gives “the president, elected by all Americans, ‘the executive power’ — all executive power.”Many conservatives believe Mr. Trump may have the opportunity to name at least one more justice to the court.
大法官克拉伦斯·托马斯没有发表过此类言论,但他是法院中年龄最大的成员,将在下届总统大选前年满80岁。
terviews, Justice Samuel A. Alito Jr., 76, has acknowledged that he thinks each year about possibly retiring. He told Bloomberg recently that he plans to serve at least through the end of the court’s term next summer. However, should Democrats win control of the Senate in the midterm election on Tuesday, he could come under intense pressure to step down immediately and give Mr. Trump the chance to choose his replacement before Republicans would lose control of the chamber in January.
白宫发言人劳伦·比斯在一份声明中说:“特朗普总统致力于任命遵循法律、维护美国宪法的法官和大法官。”
Justice Clarence Thomas has made no such statements but is the court’s oldest member and will turn 80 before the next presidential election.
协助挑选特朗普首个任期司法提名人的罗伯特·卢瑟三世表示,假设在新一届参议院就职前没有出现空缺,下一届参议院多数党的构成将是决定何种最高法院提名人可能行之有效的关键因素,一旦出现空缺。“在考虑提名谁之前,我们需要先看看票数情况,”他说。
“President Trump is committed to appointing judges and justices who follow the law and uphold the U.S. Constitution,” said Lauren Bis, a White House spokeswoman, in a statement.
在此背景下,一些专家认为,何大一法官的这番言论,以及他今年夏天早些时候发表的类似言论,是为了表明他与特朗普的世界观——以及帮助特朗普重返白宫的数百万福音派基督徒——保持一致。“他肯定看到了与这些人交往的好处,”乔治城大学访问学者马修·D·泰勒说,他写过三本关于宗教原教旨主义的书。“他正在保守派法律界之外,寻找当今共和党政治中存在的其他权力中心。”
Presuming there is no vacancy before a new Senate takes office, the makeup of the next Senate majority will be a crucial factor in what kind of Supreme Court nominee might be viable should a vacancy arise, said Robert Luther III, who helped choose Mr. Trump’s first-term judicial nominees. “Before we even think about who, we need to see the vote count,” he said.
在演讲中,何大一哀叹“这个堕落世界”的价值观。他呼吁司法界站出来,对抗“控制国家话语权的文化精英”。他还严厉斥责最高法院将同性婚姻合法化。他说,法院多数派拒绝阻止一种堕胎药的分发是错误的。他说,法院在驳回特朗普限制出生公民权的尝试时,又犯了错。
Against this backdrop, some experts perceive Judge Ho’s remarks, and similar ones he made earlier this summer, as an attempt to show his alignment with Mr. Trump’s worldview — and with the millions of evangelical Christians who helped return Mr. Trump to the White House. “He must see an upside to being around these folks,” said Matthew D. Taylor, a visiting scholar at Georgetown University who has written three books on religious fundamentalism. “He is looking outside the conservative legal establishment to some of the other power centers that exist in Republican politics today.”In the speech, Judge Ho lamented the values of “this fallen world.”He called on the judiciary to stand up to “cultural elites who control the national discourse.”He also bluntly rebuked the Supreme Court for legalizing same-sex marriage. He said the court’s majority was wrong not to block the distribution of an abortion drug. And he said it was wrong again when it rejected Mr. Trump’s attempt to limit birthright citizenship.
何大一现年53岁,出生于台湾,由特朗普于2017年提名。他曾担任德克萨斯州检察长,为大法官托马斯担任过法律助理,并曾作为参议院司法委员会一名共和党成员的法律顾问协助挑选法官。他过去曾涉足文化战争议题,曾一度领头抵制雇用某些法学院的学生担任法律助理,理由是他声称这些学校存在意识形态偏见。
Nominated by Mr. Trump in 2017, Judge Ho, 53, was born in Taiwan. He served as the solicitor general of Texas, clerked for Justice Thomas and helped select judges as counsel to a Republican member of the Senate Judiciary Committee. He has waded into culture-war issues in the past, at one point leading a boycott on the hiring of law students from certain schools as clerks, because of what he claimed was ideological bias.
作为候选人和首任总统,特朗普打破惯例,公开了他的最高法院大法官候选人名单。何大一出现在2020年第四份、也是最近一份名单上。
As a candidate and first-term president, Mr. Trump broke with tradition by publicizing his Supreme Court shortlist. Judge Ho appeared on the fourth and most recent iteration of the list, in 2020.
虽然何大一的演讲涉及最高法院,并阐述了他对法官应如何选拔的看法,但他并未明确提出自己作为潜在大法官的人选。
While Judge Ho’s speech discussed the Supreme Court and described his view of how judges should be chosen, he stopped short of proposing himself as a potential justice.
当被要求置评时,美国第五巡回上诉法院书记官办公室回复了一个链接,指向霍大法官在早先一场活动中的发言记录,他在该记录中对自己是否会在最高法院任职表示怀疑。在这些发言中,他指出,他的妻子艾莉森·N·霍帮助领导律师事务所吉布森·邓恩的上诉业务,该所律师经常出庭最高法院。他说,他的回避将意味着吉布森·邓恩客户面对的是“一个由八名大法官组成的法院”,这“实际上将终结她的职业生涯和执业”。
Asked for comment, the clerk’s office of the U.S. Court of Appeals for the Fifth Circuit replied with a link to a transcript from an earlier event where Judge Ho cast doubt on whether he would serve on the Supreme Court. In those remarks, he noted that his wife, Allyson N. Ho, helps lead the appellate practice at the law firm Gibson Dunn, from which lawyers regularly appear before the Supreme Court. His recusal, he said, would mean an “an eight-member court” for Gibson Dunn clients, which “would effectively end her career and her practice.”
他在最近的一份意见书中还写道,一些人可能认为是法官在“试镜”的行为,可能仅仅是“按照法官自认为最好的方式履行职责”。在圣经博物馆举行的聚会由“司法行动组织”主办,这是一个非营利基督教倡导团体,旨在通过祈祷和“灵性代求”来改造司法系统。该组织发布了自己的名单,列出了四位“符合最高法院大法官人选所需高标准”的法官,霍大法官在列。
He also wrote in a recent opinion that what some might perceive to be auditioning by judges may simply be “doing the job as the judge best sees fit.”The gathering at the Museum of the Bible was organized by the Judicial Action Group, a nonprofit Christian advocacy group that seeks to transform the judiciary through prayer and “spiritual intercession.”It has released its own list of four judges who “meet the high standard necessary for Supreme Court prospects,” including Judge Ho.
泰勒先生和其他批评者将该组织描述为“基督教民族主义者”,他们寻求沿神权政治路线重塑美国社会。当被要求回应这一指控时,该组织主席菲利普·豪雷吉写道:“美国是一个基督教国家,这是一个历史事实”,并补充说,“声称相反的情况,就如同断言美国不位于北美洲一样荒谬。”
Mr. Taylor and other critics have described the group as “Christian nationalists” who seek to reshape American society along theocratic lines. Asked to respond to that claim, Phillip Jauregui, the group’s president, wrote that “it is a historical fact that America is a Christian nation,” adding that “to claim otherwise is as errant as asserting that the U.S.A. is not located in North America.”
大多数司法提名人遵循的规范是避免讨论他们可能如何裁决,这与一项法规相交叉,该法规要求在大法官的“公正性可能合理地受到质疑”时回避。霍大法官在其司法确认过程中更严格地遵守了这一规范。当时,他没有就最高法院裁定禁止同性婚姻违宪一事是否正确发表意见,而仅表示他将遵循其先例。
The norm followed by most judicial nominees, where they avoid discussing how they might rule, intersects with a statute that requires recusal when a justice’s “impartiality might reasonably be questioned.”Judge Ho adhered more closely to that norm during his judicial confirmation process. At that time, he did not offer an opinion on whether the Supreme Court rightly decided that bans on same-sex marriage violated the Constitution, saying only that he would apply its precedent.
各派系的法官都呈现出更加直言不讳的趋势,公开表达对最高法院的看法,并就特朗普的行动发声。
Judges of all political backgrounds have been trending toward being more vocal, sharing their views on the Supreme Court and speaking out about Mr. Trump’s actions.
例如,明尼苏达州法官帕特里克·J·希尔茨最近接受《纽约时报》采访时警告称,在特朗普推行移民激增政策期间,明尼阿波利斯普遍出现不遵守司法命令的现象,这对法治构成了威胁。
Judge Patrick J. Schiltz of Minnesota, for instance, recently gave an interview with The New York Times warning that widespread noncompliance with judicial orders during Mr. Trump’s immigration surge in Minneapolis posed a threat to the rule of law.
曾任参议员、肯塔基州共和党人、前参议院多数党领袖米奇·麦康奈尔首席法律顾问的迈克尔·弗拉戈索为特朗普首任期内的最高法院提名人选进行了辩护。他说,这些人选“非常为人所知”。
Michael Fragoso, the former chief counsel to Senator Mitch McConnell, the Kentucky Republican and former majority leader, defended Mr. Trump’s first-term Supreme Court picks. They were “very much known quantities,” Mr. Fragoso said.
他补充道:“之所以提名他们,是因为他们有过往记录。只是他们的记录更多是关于方法论,而非基于具体议题。”他说,用潜在大法官对特定议题的看法作为终身任命的试金石,风险在于很难预测法院10年或20年后可能会面临什么问题。
“They were picked because they had track records,” he added. “It’s just that their track records were more methodological than issue-based.”The risk in using potential justices’ view of specific issues as a litmus test for a lifetime appointment, he said, is how hard it is to predict what the court might be grappling with 10 or 20 years down the road.
他说:“激进派群体还没弄明白的一件事是,总统其实根本不在乎那些实质性问题。他把这看作是一个忠诚度问题。”
“One thing the activist class hasn’t figured out is that the president doesn’t really care about any of those substantive questions,” he said. “He sees this as a loyalty issue.”