WASHINGTON — President Donald Trump has picked his first judicial nominee of his second term: Whitney Hermandorfer, a Tennessee attorney who has clerked for three of the Supreme Court’s conservative justices — including two of Trump’s nominees — and who progressive groups warn has an “extremist” record.
In a social media post close to midnight on Thursday, Trump said he plans to nominate Hermandorfer to the U.S. Court of Appeals for the Sixth Circuit. Hermandorfer, 38, currently works for the Tennessee attorney general as director of the office’s strategic litigation unit.
“Whitney has been serving the Great People of Tennessee, in the Attorney General’s Office, where she has strongly litigated in Court to protect Citizens from Federal Government Overreach,” the president said on his social media site, Truth Social.
“Whitney is a Fighter who will inspire confidence in our Legal System,” he said. “Thank you Whitney!”
Hermandorfer previously clerked for Supreme Court Justices Samuel Alito and Amy Coney Barrett, one of Trump’s nominees. She also clerked for Justice Brett Kavanaugh, another of Trump’s nominees, when he was a judge on the D.C. Circuit Court of Appeals.
This was certainly a plus for the president.
“She has a long history of working for Judges and Justices who respect the RULE OF LAW, and protect our Constitution, including Justice Samuel Alito and two fine Supreme Court Justices I appointed in my First Term,” he said.
A social media post is not a formal nomination; the White House has to officially submit Hermandorfer’s nomination to the Senate for it to begin moving. But the fact that Trump is even talking about naming someone to a court seat, here on May 2, is notable considering how sluggish Trump’s White House has been in moving judicial nominations.
By this point in his term, President Joe Biden had nominated 12 people to lifetime federal judgeships. President Barack Obama had nominated three in his first term and five in his second term. In his first term, Trump had nominated two people to federal judgeships by this point, one of whom was then-Supreme Court Justice nominee Neil Gorsuch.
“It is late for the first nominee, especially given how severely Trump has been attacking federal judges,” said Carl Tobias, a law professor at the University of Richmond in Virginia and an expert on federal judicial nominations.
As for Hermandorfer’s qualifications to be a judge, Tobias called her “an astute pick” with solid conservative credentials, very much in the mold of Trump’s first-term judicial nominees who had records of opposing abortion rights, LGBTQ rights and voting rights. He noted that she has defended the state’s “strict abortion law and efforts to keep trans people out of women’s sports” in her work with the Tennessee attorney general’s office.
Hermandorfer is also young, meaning if she is confirmed by the Senate, she could hold this lifetime federal judgeship for decades.
Tom Williams via Getty Images
Progressive judicial advocacy groups seized on the news of Hermandorfer’s coming nomination, warning that it is evidence that Trump will prioritize judicial nominees willing to put personal loyalty over the law.
Maggie Jo Buchanan, interim executive director of Demand Justice, pointed out that in late March, Hermandorfer served as counsel of record for Tennessee in a brief submitted to the Supreme Court advocating the same position that Trump is using in his efforts to end birthright citizenship.
“The administration’s attempt to end birthright citizenship has been roundly criticized as unconstitutional by leading scholars on the left and right, but Hermandorfer appears to be willing to act in lockstep with the political desires of this administration,” Buchanan said in a statement.
Alliance For Justice described her record as “disturbing” and “extremist.”
In her work for the Tennessee attorney general, Hermandorfer led litigation from several states challenging Biden’s Title IX guidance that included protections for transgender students and their inclusion in school activities. Her efforts to roll back these protections is what Trump was referring to in his post when he called her “a staunch defender of Girls’ and Women’s Sports.”
“This is perhaps why Trump himself included a familiar and obvious anti-trans dog whistle in his announcement, expressing his expectation that she will uphold the discrimination his administration has already pushed through various executive orders,” Alliance for Justice said in a statement.
Keith Thirion, the group’s interim co-president, said in the statement that he hopes senators are prepared to stop “conservative crusaders like Whitney Hermandorfer who will be loyal to [Trump] and his discriminatory authoritarian agenda at the expense of all of us.”
People For the American Way President Svante Myrick took things a step further, saying the Senate shouldn’t confirm Hermandorfer or any of Trump’s judicial nominees given his regular attacks on the courts and his calls for judges to be removed who rule against him.
“With a Republican-controlled Congress currently doing nothing to protect our democracy, it’s up to the courts to preserve the critical checks and balances and keep us free,” Myrick said in a statement. “Until Trump fully reverses course and recognizes that he is not a king, we cannot allow him to put any lifetime judges on our federal courts.”
The White House did not respond to a request for comment on when Trump plans to formally send Hermandorfer’s nomination to the Senate.