This is the second time that Judge Amul Roger Thapar has been considered by President Trump for a Supreme Court appointment.  Last year, Thapar was interviewed by Trump and White House Counsel Don McGahn for the seat opened by Justice Scalia’s death, despite only being a District Court judge at the time.[1]  Shortly after, Thapar was nominated to the U.S. Court of Appeals for the Sixth Circuit (Trump’s first lower court judicial nominee) and was confirmed on a party-line 52-44 vote.

Vital Statistics

Name: Amul Roger Thapar

Age: 49

Current Position: Judge on the U.S. Court of Appeals for the Sixth Circuit since 2017

Education: B.S. from Boston College; J.D. from U.C. Berkeley School of Law

Clerkships: Judge S. Arthur Spiegel on the U.S. District Court for the Southern District of Ohio; Judge Nathaniel Jones on the U.S. Court of Appeals for the Sixth Circuit

Prior Experience: Associate at Williams & Connolly; Assistant U.S. Attorney for the Southern District of Ohio; U.S. Attorney for the Eastern District of Kentucky; U.S. District Judge for the Eastern District of Kentucky

Jurisprudence

Thapar has served on the U.S. Court of Appeals for the Sixth Circuit since May 25, 2017.  In the past thirteen months on the Sixth Circuit, Thapar has authored approximately forty opinions.  These opinions are mostly unanimous, with only two sparking a dissent by a panel judge.[2]  In one case, Thapar reversed summary judgment against plaintiffs in a civil rights case for a warrantless entry, but held that a malicious prosecution claim was forfeited.[3]  In dissent, Judge Eric Clay noted:

“While it is true that Plaintiffs could have done a better job presenting their argument as to this claim, the brief is not so lacking in support and development as to consider the argument forfeited or waived. Indeed, Plaintiffs discussed the issue for four pages, throughout which they cited the standard for a malicious prosecution claim and identified sections of the record purportedly showing that elements of the claim are disputed. Plaintiffs also identified statements in the police report that they contend are false. Therefore, Plaintiffs have done enough in their brief for their argument not to be considered forfeited or waived.”[4]

In criminal and civil rights cases, Thapar has generally struck a conservative tone.  For example, in Fields v. Henry County, Tenn. (decided while he was sitting by designation), Thapar held that the Constitution did not prohibit the automatic detention of domestic violence arrestees, holding that there is no constitutional right to speedy bail.[5]  In another notable case, while sitting by designation on the Sixth Circuit, Thapar held that a defendant’s purchase of a one-month subscription to a child pornography website sixteen months earlier created probable cause for a search of his home.[6]  Thapar’s reasoning was lambasted in dissent by Judge Karen Nelson Moore, who suggested that Thapar had a “radical view of probable cause” that was “far more expansive than any circuit had taken to date.”[7]

Thapar has, on occasion, issued decisions that could be considered more “liberal.”  For example, Thapar held that police officers were protected by the First Amendment in exposing illegal wiretapping of private conversations conducted by law enforcement.[8]  In another case, Thapar affirmed the suppression of evidence where the searching officer did not abide by the conditions of the anticipatory warrant issued.[9]

Before his elevation, Thapar served on the U.S. District Court for the Eastern District of Kentucky for nine years.  During this time, Thapar maintained a fairly conservative record, particularly on criminal issues.[10]  In civil cases, Thapar also developed a reputation for denying motions for summary judgment in cases where factual disputes required cases to go to the jury.[11]

Notably, as a District Judge, Thapar struck down several canons of the Kentucky Code of Judicial Conduct, including restrictions on holding political fundraisers.[12]  The Sixth Circuit affirmed most of Thapar’s opinion but reversed his striking of the political fundraiser restriction.[13]

Why Trump Could Choose Thapar as His Nominee

By all accounts, Trump is looking for credentialed young conservatives for the Supreme Court.  Thapar meets all three criteria: he has strong academic credentials; is younger than every Supreme Court nominee since Clarence Thomas; and has a relatively conservative record on the bench.  Furthermore, Thapar is strongly supported by Senate Majority Leader Mitch McConnell, and would likely be confirmed smoothly, given his mentor’s strong reputation among the Senate Republican Caucus.  Finally, Thapar would make history as the first Indian American, Asian American, and South Asian American Supreme Court Justice, potentially blunting the effectiveness of attacks painting him as a conservative ideologue.

Why Trump Would Not Choose Thapar as His Nominee

Trump has apparently asked that his nominee have stellar academic credentials and a strong body of academic writings.[14]  In contrast with other shortlisters, Thapar did not attend Harvard or Yale, did not clerk on the U.S. Supreme Court, and has authored just three academic articles in his entire career.

Furthermore, Thapar’s jurisprudence, while conservative, also includes a fair share of liberal anomalies.  This may lead Trump to more “reliably” conservative nominees.

Expected Lines of Attack

If Thapar is nominated, expect ads to focus on his connection to McConnell, who remains significantly less popular than Trump.  Furthermore, Thapar may face criticism for his overturning of canons in Kentucky’s Code of Judicial Conduct, which may be paralleled to the Supreme Court’s ruling in Citizens United.

Likelihood of Being Nominated

Thapar would not be where he is today without the support of Senate Majority Leader Mitch McConnell (R-KY), who was Thapar’s sponsor as he became the first Indian American to serve as U.S. Attorney for a federal district, the first Indian American to serve as an Article III federal judge, and finally, the first Indian American judge on the Sixth Circuit.  As such, one can only assume that the powerful McConnell is (at least partially) responsible for Thapar’s consideration for the Supreme Court.

However, given his limited academic record and his (relatively) unpredictable jurisprudence, I’d predict that Thapar is the least likely of the five finalists to be nominated.

---