Editorials and Opinion
Bill Straub: McConnell, Trump appear headed for a showdown — and it could come sooner than later (Northern Kentucky Tribune, 09/28/17)
"Every time McConnell is reminded if he were a Broadway show he would have closed opening night, he repeats his mantra – Justice Neil Gorsuch, expressing great pride in cheating and stealing to get his man on the U.S. Supreme Court over a more qualified candidate, Judge Merrick Garland of the U.S. Court of Appeals in Washington DC, nominated by then-President Barack Obama. But Republicans, while they appreciate the diabolical steps Ol’ Root ‘n Branch finagled, are now taking a what-have-you-done-for-me-lately stand, and the majority leader is coming up empty."
EDITORIAL: Mateer nomination should be withdrawn (San Antonio Express-News [TX] , 09/28/17)
"We had never heard anyone refer to children as part of “Satan’s plan.” Children.
But then news broke about Jeff Mateer, whom President Donald Trump has nominated for a federal judgeship in the Eastern District of Texas. In a 2015 speech, Mateer, then general counsel for Plano-based First Liberty Institute, referred to transgender children as part of “Satan’s plan.”... It’s crude, utterly devoid of restraint and objectivity.
That comment alone lacks the necessary temperament for the judiciary. It calls his impartiality into question. He has also called gay marriage, which is legal, “disgusting” and likened it to bestiality. Will he be able to separate his personal views from his interpretation of the law? What he says and how he says it cast that into doubt.
None of this is surprising.... He has cast doubt on the separation of church and state, saying it’s a “misleading metaphor” that infringes on First Amendment rights.
This is just not accurate.... It’s a bit astounding that Mateer has been nominated — with the blessing of Texas Sens. John Cornyn and Ted Cruz — given his controversial history. Is this a conservative they really believe is worthy of the federal bench?
None of this speaks well for the vetting process. And if the nomination proceeds, the comments will be a point of contention.
The best possible outcome would be for Mateer’s nomination to be withdrawn."
Citizen Green: Jesse Helms’ revenge (Triad City Beat [NC], 09/28/17)
Jordan Green: The throughline of deliberate racial polarization combined with ugly voter suppression tactics against African Americans has continued unabated over the past 50 years, held in check only by the US Justice Department. It’s hard to think of a more committed operative to the cause than Thomas Farr, who has received President Trump’s nomination to fill a federal judgeship in the Eastern District of North Carolina.... Apparently overlooking the Fourth Circuit’s rebuke and neglecting to mention his own role in creating the unconstitutional law, Tillis opined that Farr is “widely respected as one of the best legal minds in North Carolina.” ... If defending a politician who mastered the dark arts of racial polarization and also argued for a law that “target[ed] African Americans with almost surgical precision” match Burr’s idea of a “good man,” he has a strange definition of the word “good.”
Transmissions: 'Satan's plan' (Bay Area Reporter [CA], 09/28/17)
Gwendolyn Ann Smith: Jeff Mateer is up for a judgeship on the United States District Court for the Eastern District of Texas.... Yes, a man who is up for a federal judgeship believes that transgender people are a part of "Satan's plan."... it is those like Mateer who seem to have their own agenda. Think back to the quote above, and consider that Mateer is demonizing a 6-year-old who certainly is no threat to the First Liberty Institute or, likely, anyone. ... Rather than letting us be, people like Mateer seem hell-bent on our destruction.... Mateer is the one who sounds like he is more in league with the devil.
EDITORIAL: Short takes: An injudicious appointment (St. Louis Post-Dispatch [MO], 09/28/17)
"President Donald Trump really outdid himself last week by appointing Jeff Mateer, a top assistant Texas attorney general, to a federal judgeship. CNN reports that in 2015, Mateer gave a speech calling transgendered children are a sign that “Satan’s plan is working.”
He also denies that separation of church and state is mandated by the U.S. Constitution -- never mind that pesky First Amendment. Further, he believes that same-sex marriage could return the country “back to that time where debauchery rules.”... The Senate Judiciary Committee should send Mateer packing. Trump should find himself a judge who’s not a kook."
The Daily 202: Roy Moore’s victory and Bob Corker’s retirement are fresh indicators of a Senate that’s coming apart (Washington Post, 09/27/17)
James Hohmann: Now blue slips, one of the most cherished prerogatives of senators in the minority, are in grave danger. Gorsuch has demonstrated with his early decisions that he is likely to be the most conservative justice on the high court. The next Democratic president will almost certainly nominate someone who is as far to the left as Gorsuch is to the right. The judiciary will continue to become more politicized, and the country will continue its descent into tribalism.
Editorial: Burr's obstinance may help Farr but doesn't further justice (Capitol Broadcasting Company [NC], 09/27/17)
"[T]he seat on the Eastern District of North Carolina judicial bench has been vacant for so long (11 years, the longest standing judicial vacancy EVER) .... There were some most able nominees, Jennifer May-Parker and Patricia Timmons-Goodson. But they were NEVER even considered by the U.S. Senate. Sen. Richard Burr, a Republican, refused to submit their names to the Senate Judiciary Committee for consideration. Burr refused even though he was among those who’d recommended then-President Barack Obama nominate May-Parker for the post.
Had either May-Parker or Timmons-Goodson been confirmed by the Senate, they’d have been the first African-Americans to sit on the federal bench in the 44-county district were 27 percent of the population is black.
The long vacancy has been a burden for the area. ... During his re-election campaign a year ago, Burr boasted about his obstructionist efforts. “I have the longest judicial vacancy in the history of the United States in the Eastern District of North Carolina,” Burr said, as he pledged to block Supreme Court nominations if Democrat Hillary Clinton were elected.
Well, Clinton lost and Burr’s now proudly promoting President Donald Trump’s recycled nominee for the seat – white Republican Thomas Farr.... Burr blocked two very qualified African-American judicial candidates for years. But when Trump was elected, he heartedly backed a lawyer who has defended the most racially segregated legislative and congressional districts in the nation."
The Unheralded Death of the Blue Slip: Republicans appear poised to break one of the Senate’s oldest, and finest, traditions. (Daily Beast, 09/26/17)
Eleanor Clift: This is particularly grating to Democrats who dutifully deferred to Republican home state senators when President Obama was in the White House. McConnell personally blocked Obama’s choice of Kentucky Supreme Court Justice Lisabeth Tabor Hughes because he wanted someone else. ... After benefiting enormously from the blue slip tradition, McConnell had a change of mind when Democratic senators from Minnesota and Oregon did not return their blue slips for two Trump picks for the Court of Appeals. ... The blue-slip tradition has been violated only three times, most recently in 1989 and 1983 when California Democrat Alan Cranston refused to return his blue slip when President Reagan and then President George H.W. Bush were in the White House. Before that, you have to go back to 1936 .... No judge has ever been confirmed over the objections of both home-state senators .... Former Judiciary chairman Patrick Leahy never once deviated from the blue slip tradition, and 18 Obama appointees never got hearings. All but one was a woman or a minority, part of Obama’s commitment to bring more diversity to the courts. Leahy took heat for that from fellow Democrats, and had to fend off then Senate leader Harry Reid, who wanted him to suspend the blue slips so Obama could get more judges.
Leahy fiercely defends the blue slip as vital for the senate to advise and consent. He believes Grassley will honor his pledge, saying that in their 30-year relationship, Grassley has never broken his word.
Column: Trump, GOP take aim at courts (Detroit News [MI], 09/26/17)
Nan Aron: The party-line confirmation of John Bush to the Sixth Circuit Court of Appeals, ... demonstrates that the Republican majority cares little whom they confirm. Bush had written blog posts that routinely demeaned women and LGBTQ people, and recycled racist “birther” theories targeting President Obama. ... In Wisconsin, Trump ignored the state commission that has vetted federal judicial nominees for decades when he nominated an ally of Gov. Scott Walker for the Seventh Circuit. There’s talk of halting the century-old “blue slip” tradition allowing home-state senators to weigh in on nominations .... Larsen isn’t the only nominee with a controversial record: in Indiana, there’s professor Amy Coney Barrett ... Then there’s Damien Schiff, nominated for the U.S. Court of Federal Claims. Schiff attacked the integrity of U.S. Supreme Court justice Anthony Kennedy, calling him a “judicial prostitute.” The list goes on.
Seventh-Circuit Shakedown: Myra Selby Deserved Her Day in the Senate (Commonweal, 09/25/17)
Cathleen Kaveny: hen law professor Amy Coney Barrett was nominated to the U.S. Court of Appeals for the Seventh Circuit by Donald Trump, her friends and colleagues at the University of Notre Dame rallied to her cause.... Indiana Senator Joseph Donnelly ... sent in his “blue slip” authorizing the hearings to go forward.... But here’s the thing: Barrett was not the first candidate from Indiana for the vacant spot on the Seventh Circuit. In January 2016, President Barack Obama nominated Myra Selby .... Selby herself was a justice on the Indiana Supreme Court—in fact, she was the first woman and the first African American to hold that position. During her five years on the court, she wrote more than a hundred majority opinions.... Despite her qualifications, Selby, unlike Barrett, never made it to Washington for a Senate hearing. While Senator Donnelly sent in his blue slip, Dan Coats, the Republican senator at the time, flatly refused to do so.... What happened to Merrick Garland, Obama’s appointment to the U.S. Supreme Court, happened to Selby—as well as many other judicial nominees whose appointments were deliberately stalled by Republicans in Obama’s last year of office.... Yet not one of the many Notre Dame Law School faculty members who are members of the Federalist Society or active in Republican politics put the same type of pressure on Coats that McAward exerted on Donnelly.
9th Circuit Nominee Could Bolster Trump’s Immigration Policy (Courthouse News Service, 09/25/17)
Karina Brown: Instead of choosing a nominee from a list drafted by a bipartisan committee, Trump chose Bounds after Oregon’s lone Republican congressman, Rep. Greg Walden, recommended him .... Walden ... He also gave an impassioned speech on the floor of the House defending Ammon Bundy and his followers during the armed standoff at the Malheur National Wildlife Refuge. In a letter to President Trump, Walden called Bounds “the rare Oregonian with a sincere commitment to conservative jurisprudence and a distinguished academic record [who would] approach each case as an opportunity to defend our constitutional principles.” In addition to his membership in the Federalist Society, Bounds has connections that may have helped position him for this appointment. His first job out of law school was as clerk for O’Scannlain, and his sister Lorissa is Walden’s chief of staff. Sources who spoke on condition of anonymity called Bounds “incisive” and “aggressive,” and said they had no doubt that he would be a “powerful advocate” for a variety of conservative causes. One prominent public defender told Courthouse News that ... “He’s the kind of wealthy guy that affects an accent, like Thurston Howell from ‘Gilligan’s Island,’”
Another Day, Another Comically Unfit Judicial Nominee: Trump judicial nominee rails about "Satan's plan." (Above the Law, 09/25/17)
Joe Patrice: when applied to judicial nominations, the calculus rings true: the administration should be judged — and judged harshly — more by its failures than any successes. These are lifetime appointments to positions that wield incredible power. ... So far they’ve been wrong… a lot more than once.
These days, attention is shifting to Jeff Mateer, a nominee for an Eastern District of Texas seat. after punching his ticket at the First Liberty Institute, one of those non-profit advocacy centers dedicated to the principle that “liberty” means the right of everyone in this great nation to deny basic human rights to gays. ... This isn’t a slip up. Stuff like this doesn’t happen in spite of vetting, it happens because of it. ... It’s one thing for a lawyer to defend conservative causes, like, say, Paul Clement. It’s a whole other thing for a lawyer to rail against the march of constitutional rights as part of “Satan’s plan” and have this outburst serve as justification rather than disqualification from office. But again, this isn’t the first black eye for the Trump team. John Bush? Damien Schiff? When observers can plausibly say a federal appellate nominee is at best a blogger with a law degree and at worst a 4chan troll with a Martindale entry, then the sanctity of the whole endeavor is, rightly, tarnished. It demeans every nomination.
Purdon and Maring: It's time for a federal Judicial Nominating Commission in North Dakota (INFORUM [ND], 09/25/17)
Former ND Supreme Ct. Justice Mary Muehlen Maring and former US Attorney Timothy Q. Purdon: Nominating committees to screen candidates for federal court vacancies have been used by senators in several states for more than 30 years, including prominent Republicans Marco Rubio and Ted Cruz. These committees are used in states represented by senators from both parties, such as Wisconsin's Sens. Ron Johnson and Tammy Baldwin. A professional process that considers all of the available, interested and qualified attorneys in the state should be used to fill lifetime appointments to these critically important decision-making courts.... In the history of the Eighth Circuit Court of Appeals, out of the 62 appointed judges only two have been women and only two have been people of color. In North Dakota, the statistics are even more one-sided. Since statehood, North Dakota has had seventeen federal judges appointed. Not one has been a woman. In fact, North Dakota is one of only two states that have never had a woman sit on these district and circuit federal courts.
Questions on faith not bigoted (Journal Gazette [IN] , 09/25/17)
Cathleen Kaveny: Feinstein and Durbin are concerned with how Barrett's religion-infused moral beliefs will influence her judicial decision-making – and the day-to-day lives of the American people.
Letter to the Editor: Jeff Mateer: Cornyn, Cruz may not be much help (Dallas Morning News, 09/25/17)
Daniel Prado: I certainly agree with you that Donald Trump can find better Texans than Jeff Mateer for the vacant federal judgeship for the Eastern District of Texas ... As your editorial stated, Mateer has made inflammatory, abhorrent and scientifically unproven statements regarding states banning gay conversion therapy and that same-sex marriage would lead to polygamy and bestiality.
Supreme Court case over a wedding cake could mark an erosion of LGBT rights (Baltimore Sun, 09/25/17)
David Placher: Mr. Trump’s position in support of the baker and his determination to make the judiciary more conservative means that LGBT rights will continue to be under attack by opponents of same-sex marriage who want to use the courts to roll back protections for the LGBT community.
Mitch McConnell, the Senate majority leader, made the situation worse for the LGBT community when he stole a vacant Supreme Court seat from President Barack Obama by refusing to so much as hold a vote on any nominee for Mr. Obama’s last 11 months in office. He destroyoed the long standing opportunity to filibuster Supreme Court nominees and ignored Democrats’ concerns to confirm ultra conservative activist Justice Neil Gorsuch in just three months. ... With the Democratic Party in the minority unable to stop the Republican-controlled U.S. Senate from confirming conservative judges and Supreme Court nominees, and Mr. Trump’s determination to fill judicial vacancies with conservatives, the LGBT community may lose all protections, including the right to marry, by the time Mr. Trump’s first or second term ends.
America's Red and Blue Judges: Justice Neil Gorsuch exemplifies how the Supreme Court has become fully enmeshed in the rankest partisan politics. (Atlantic, 09/25/17)
Garrett Epps: Asked to explain to his party’s base the Senate’s lack of legislative accomplishment, McConnell said, “Well, we have a new Supreme Court justice.”
Gorsuch hasn’t commented on that statement. But he was quite happy to appear with McConnell Thursday on what veteran Supreme Court correspondent Kenneth Jost called a “victory lap” to the University of Louisville and University of Kentucky law schools last week. ... Not since the New Deal crisis of 1937 has the Supreme Court been so clearly revealed to the world as fully enmeshed in the rankest partisan politics. ... McConnell had announced a new rule. The sitting president could not name a justice .... with McConnell’s announcement, and the Republican caucuses compliance in what they knew was grievously wrong, judicial nominations reached the last stop on the highway to hell.... It might have been seemly not to appear with McConnell; it might be even seemlier to refuse a speaking engagement at the Trump Hotel. That kind of reticence, however, is apparently not to be expected from our newest justice. He will not even pretend to care about how the losers in the process see either him, or the Court.
Sounding off: BLUE SLIPS AND BIPARTISANSHIP (Pittsburgh Tribune-Review [PA] , 09/23/17)
Letter to the Editor by Glenn Sugameli, founder and head since 2001 of Judging the Environment , a nonpartisan federal judicial nominations project: All Senate Republicans supported blue slips in a 2009 letter, as did a 2015 Des Moines Register op-ed and a 2016 post-election statement from Chairman Chuck Grassley, R-Iowa. Sen. Patrick Leahy, D-Vt., said Grassley “told me he was going to follow the same procedures as chairman” and “has never broken his word to me” over three decades.
In a 2014 op-ed titled “Protect the Senate's important ‘advice and consent' role,” Sen. Orrin Hatch, R-Utah, stressed that “The blue slip process ... has greatly enhanced consultation and cooperation between home state senators and the White House. ... Weakening or eliminating the blue slip process would sweep aside the last remaining check on the president's judicial appointment power. Anyone serious about the Senate's constitutional ‘advice and consent' role knows how disastrous such a move would be … ultimately produc(ing) a more politicized federal judiciary.”
Mateer’s Nomination is a Brazen Attack on LGBTQ Americans: And it continues a dangerous Trump administration trend. (Medium, 09/22/17)
The Leadership Conference on Civil and Human Rights: [Jeff] Mateer, of course, isn’t Trump’s first nominee to harbor anti-LGBTQ bias. Several of his Cabinet nominees, including Jeff Sessions, Betsy DeVos, and Ben Carson, have dark histories of opposing LGBTQ rights. The same is true for many of Trump’s judicial nominees, like Damien Schiff, John Bush, Stephen Schwartz, and Joan Larsen. ... Mateer’s nomination to the U.S. District Court for the Eastern District of Texas is an assault on our nation’s ideals of equality and inclusion and must not move forward. If it does, The Leadership Conference on Civil and Human Rights coalition will be here to fight back
Editorial: Thumbs down (Houston Chronicle, 09/22/17)
(Thumbs down) The Trump administration has appointed a pair of Texans to distinguished positions. We're unclear who's in charge of vetting, but consider this: ... Jeff Mateer, a first assistant attorney general to Ken Paxton, if confirmed will have a lifetime appointment as a federal judge in the Eastern District of Texas. He gave a speech in 2015 referencing a young transgender child. "I mean it just really shows you how Satan's plan is working and the destruction that's going on." From that lectern, he called same-sex marriage "disgusting."
Judgmental (Off the Kuff blog [TX], 09/22/17)
Charles Kuffner: The only bench this guy should be allowed on is a park bench.... Is there any reason to believe that Jeff Mateer would treat everyone who came before his court in a fair and impartial manner? Surely any LGBT person would have good cause to doubt that, but so would anyone who doesn’t share Mateer’s views on, well, pretty much anything.... “Travesty” is not a strong enough word for making this guy a visiting judge, much less giving him a lifetime appointment to a federal bench. Unfortunately, he’s far from the only such nominee, in Texas and all around the country.
Letter: Inundated with TV ads (Chaska Herald [MN], 09/22/17)
Steven Sasnow: We are being inundated with TV ads pro-David Stras for U.S. Court of Appeals judge.
These ads demonstrate exactly why Stras is unsuitable for the position.... hese are attack ads against Al Franken using innuendo and unsubstantiated claims.
GOP seeks judges who will stifle voting rights (News & Observer [NC], 09/22/17)
Billy Corriher: With the courts blocking their voter-suppression agenda, conservative politicians in Washington and Raleigh alike are pushing to get their preferred judges on North Carolina’s courts. President Trump, in fact, has nominated Thomas Farr, the lawyer who unsuccessfully defended the 2013 voting law and the 2011 redistricting maps, to a lifetime seat as a federal judge.... Farr has been nominated to fill the longest-running vacancy on the federal courts. Sen. Richard Burr refused to sign off on President Obama’s two nominees, including a judge he actually recommended to the president. President Obama nominated two African-American women to the seat, in a district that has never had a black judge even though one-fourth of its residents are black.
No, Dianne Feinstein is not an anti-Catholic bigot (Washington Post, 09/22/17)
Cathleen Kaveny: there is no evidence that Feinstein was motivated by anti-Catholic bias. In fact, Sen. Richard J. Durbin (D-Ill.), who is Catholic, also asked Barrett about the impact of her faith on her jurisprudence.... both senators were striving, however awkwardly, to do their constitutional duty: to vet a candidate for a life-tenured federal judgeship. ... they are concerned with how Barrett’s religion-infused moral beliefs will influence her judicial decision-making — and the day-to-day lives of the American people. ... many laws call upon judges to make moral judgments. At one extreme, the Eighth Amendment prohibits “cruel and unusual” punishments. At the other, the doctrine of promissory estoppel in private contract law requires the enforcement of some broken promises, limiting remedies “as justice requires.” A judge’s moral views — whether religiously infused or not — are relevant to his or her behavior on the bench.... American Catholics can’t say, on the one hand, that our faith has a public dimension — important implications for our public policy and law — and cry foul, on the other, when fellow citizens challenge us about those implications.
Nancy Lyons: Hold the line on Stras nomination, senators (St. Paul Pioneer Press [MN], 09/21/17)
"[H]ome-state senators can still have a say. Specifically, if one or both of them has serious enough concerns, they can refuse to return a “blue slip” for the nominee, which by tradition can prevent the nominee from moving forward, and demand a more suitable nominee. That is a unique privilege and power that can prevent decades of damage to the federal judiciary and the rights of Americans for generations.
Recently, our senators have found themselves in this situation. One of our state’s Supreme Court justices, David Stras, has been nominated to the Eighth Circuit Court of Appeals, which serves Minnesota and six other states.
Sen. Franken led the way this month by announcing that he opposed Stras’ nomination. Sen. Franken knows that we did not send him to Washington to rubber-stamp the president’s agenda. Rather, he knows that we expect him to look out for us, and to use every tool available to him to protect Minnesotans from harm. And by refusing to return his blue slip on this nomination, he has done just that.... Justice Stras has routinely made decisions based on ideology rather than the law."
While You Weren’t Looking, the Senate Has Been Rubber-Stamping Trump’s Extreme Judicial Picks: Senate Judiciary committee chair Charles Grassley has abandoned Senate custom to push through Trump’s extreme nominees. The worst may be yet to come. (Daily Beast, 09/21/17)
Jay Michaelson: Contrary to rumors about a rift between Trump and Senate Republicans, every nominee thus far has won the party’s unanimous support. ... Sen. Charles Grassley, the chairman of the Senate Judiciary Committee who chose not to give a hearing to Judge Merrick Garland or 59 other Obama nominees, has again departed from decades of Senate practice to expedite the hearing process for circuit court appointees. First, Grassley has stacked multiple nominees together into a single hearing, making it extremely difficult to properly vet and question any of them.... nominees had been “stacked” previously only when the minority party agreed to do so. ... But Grassley’s most audacious move may be yet to come. Rumors have circulated that he is considering doing away with so-called blue slips, the customary requirement that senators from a nominee’s home state both agree to the nomination. Like most rules of the Senate, blue slips are only a custom—but it is a custom that dates back over a century and is an important part of the system of checks and balances.... Majority Leader Mitch McConnell and Attorney General Jeff Sessions withheld blue slips frequently during the Obama years to block judicial nominees they didn’t like ... the nominees Grassley is rushing through the Senate were chosen by Trump’s outsourced ideologues at the Federalist Society and Heritage Foundation ... a nominee who called Justice Anthony Kennedy a “prostitute.” These aren’t conservatives—they’re wing nuts.... Finally, these ideologues’ motives are entirely explicit. Leonard Leo, Trump’s adviser on the judiciary who is managing the think-tank-to-court pipeline, said in May that “I would love to see the courts unrecognizable.”