It is rare for a sitting federal appeals court judge to offer advice on what kind of people to nominate to the Supreme Court.
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.”
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. 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.
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.
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.
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.
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.
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.
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.
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.”
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.”
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.
In interviews, 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.
Justice Clarence Thomas has made no such statements but is the court’s oldest member and will turn 80 before the next presidential election.
“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.
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.
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.
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.
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.
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.
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.”
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.
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.”
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.
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.
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.
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.
“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.
“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.”
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