Trump should not fill Alito’s seat with a ‘meh’ in robes

At the beginning of the year, one of my crystal-ball predictions for 2026 was that Samuel Alito and/or Clarence Thomas would retire so President Trump could replace them before the midterms.

Recent reporting suggests that prediction may prove correct, especially with speculation that Alito is considering stepping down. So I checked with some sources to see which names are circulating as possible replacements.

Why should our side ever put a judge on the Supreme Court who sides with the left on the sanctity of life for any reason?

The reality is Alito is not easily replaced. He has been one of the best Supreme Court justices of this century. His successor cannot be some C-plus or B-minus judge with a fuzzy record and a habit of folding at the wrong moment. The stakes are too high.

That is why one name worries me: Judge Andrew Oldham.

Trump already passed on Oldham for the Supreme Court in 2020 and for good reason. What remains of our constitutional republic does not have time for a “meh” nominee.

Oldham, a former general counsel to Texas Gov. Greg Abbott (R), now serves on the 5th U.S. Circuit Court of Appeals. A quick look at his record shows a pattern that should alarm anyone hoping for another Alito.

Let’s start with life.

Alito authored the phenomenal majority opinion in Dobbs v. Jackson, which overturned Roe v. Wade, one of the most wicked decisions in American history. Oldham’s record points the other way. In 2000, Bill Clinton’s FDA treated pregnancy as an “illness” to justify accelerated approval of abortion drugs as the supposed “cure.” Years later, a Trump-appointed district judge rightly rejected that decision, and a Trump-appointed circuit judge backed him. Oldham, however, became the first circuit judge to side with the Clinton FDA’s position on procedural grounds.

The American Family Association called that decision “shockingly weak” at the time. The Supreme Court effectively vindicated that criticism in 2024 when it overturned Oldham by a 6-3 vote.

Why should our side ever put a judge on the Supreme Court who sides with the left on the sanctity of life for any reason?

The concerns do not stop there.

AFA, which tracks judicial nominations as well as any group on the right, has also described Oldham as “soft” on COVID shot mandates. He earned that reputation when he wrote an opinion saying schools need not require children to wear masks, not because masks do not work, but because schools could instead adopt other COVID policies involving vaccines, plexiglass, hand sanitizer, distancing, and more.

The opinion was so weak that no other judge joined it.

Then came gender ideology. Last year, my Blaze Media colleague Daniel Horowitz reported on Oldham siding against doctors and with the Biden administration’s edict that they must perform gender-transition procedures on children by refusing even to hear their challenge. Oldham had a chance to join a Trump-appointed judge who rejected Biden’s grotesque mandate. He passed.

His immigration record raises more red flags.

RELATED: Supreme Court sides with Catholic parents against California on student gender notification — for now

Photo by Kent Nishimura/Bloomberg via Getty Images

Oldham declined to back a Trump-appointed district judge who ruled against allowing illegal aliens to receive cheaper in-state college tuition than out-of-state Americans. That alone should have disqualified him from serious consideration.

Thankfully, Trump’s Justice Department sued last year to end that practice in Texas, where Oldham’s former client is governor. Once the Justice Department sued, Texas finally conceded the point. Now left-wing groups want the courts to restore that anti-American policy. And which legal precedent are they citing? Oldham’s.

You cannot make it up.

Nor was that his only immigration failure. Oldham also ruled against Abbott when the governor declared an invasion at the southern border two years ago. Does that sound like a judge ready to overturn Plyler v. Doe, the disastrous precedent that for illegal immigration serves much the same function Roe once served for abortion?

Now sensing that his moment may have arrived, Oldham appears to be trying to retcon himself as a reliably based jurist. Even Slate has noticed the pattern — the judicial equivalent of a comb-over meant to hide an obvious weakness. The result has been embarrassing. He now gets overturned with some regularity by one of the most right-leaning Supreme Courts in recent memory.

That tends to happen when ambition outruns conviction.

Oldham once lobbied Barack Obama to appoint Elizabeth Warren, of all people, to head the Consumer Financial Protection Bureau. Now he wants conservatives to view him as Alito’s natural heir. That kind of ideological shape-shifting should make everyone nervous. When a man’s career seems driven more by advancement than by principle, it becomes hard to know where he actually stands.

That was never a question with Alito.

Replacing a sure thing requires another sure thing. Oldham is not that. Maybe he has good explanations for parts of his record. But maybe Trump can do better.

This may be Trump’s last chance to appoint a Supreme Court justice. It would amount to a self-own of historic proportions for the most based president of modern times to replace Alito with someone appreciably weaker than a George W. Bush appointee turned out to be.