Editorials and Opinion
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.
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
'Preposterous' Stonewalling By Judicial Nominees Makes a Mockery of Confirmation Hearings (American Constitution Society Blog, 09/19/17)
Dan Froomkin: At a recent Senate Judiciary Committee hearing, two Trump nominees to appellate courts -- Amy Barrett, a Notre Dame law professor, for the Seventh Circuit, and Michigan Supreme Court Justice Joan Larsen, for the Sixth – were showing how well they had been coached in saying nothing of substance.
But two Senators – one from stage left, and one from stage right – said they'd had about enough of the show.
Sen. Sheldon Whitehouse (D-R.I.) called the hearings "preposterous" because -- although Trump's judicial nominees clearly have to pass a number of litmus tests from Trump and interest groups -- Senators "get answers that are hopeless in terms of trying to give us any sense" of what their legal views are.
When Sen. John Kennedy's (R-La.) questions were sanctimoniously rebuffed, he insisted that judicial nominees should face – and answer – tough questions from both sides of the aisle.
10 Things You Need To Know About Blue Slips: Republicans repeatedly used the tradition to block President Obama’s judicial nominees. (Huffington Post, 09/13/17)
Christopher Kang, Former Deputy Counsel to President Obama: Both home-state senators receive a blue slip, and each senator must return a positive blue slip for a judicial nominee to be confirmed — with only three exceptions in 100 years, the most recent in 1989.... overriding negative blue slips would diminish every senator’s influence over his or her home-state’s judicial nominees.... A judge has never been confirmed over the objections of both home-state senators.... Objections by Republican home-state senators have always been respected.... During the Obama administration, Republicans blocked 18 judicial nominees through blue slips.... he Judiciary Committee—under both Chairmen Leahy and Grassley—made zero blue slip exceptions during the Obama administration....When Republicans blocked nominees by withholding their blue slips, they often refused to examine or discuss a nominee’s record and based their objections solely on process — despite a record that suggests months or even years of consultation.... When Republicans returned their blue slips, it could take many months — or even years — to do so, undermining Republican whining now that Democrats are taking a few months to review nominees’ records.... There is no Democratic abuse of the blue slips, as Democrats already have returned blue slips on four circuit court nominees — including two on President Trump’s Supreme Court short-list.... We must uphold the Grassley-Leahy-Hatch blue slip standard.... According to Senator Leahy, “[Chairman Grassley] told me he was going to follow the same procedures as chairman. And I take him at his word…I’ve known him for over 30 years. He’s never broken his word to me.”
Instead, Senate Republicans should heed the words of Senator Hatch — who also is the longest serving Republican senator: “I sincerely hope that the majority will not continue to sacrifice the good of the Senate and the good of the country simply to serve short-term political interests. I’m glad Chairman Leahy has preserved the blue slip process. It should stay that way.”
Grassley should rethink scheduling of Judiciary Committee hearing (Des Moines Register [IA], 09/05/17)
Prof. Carl Tobias: The Chair has also resisted substantial pressure from the White House, Senate Majority Leader Mitch McConnell (R-Ky.), GOP colleagues and conservative pundits to change the blue-slip policy that Sen. Patrick Leahy (D-Vt.) and Grassley followed as Chairs throughout President Barack Obama’s tenure. Leahy and Grassley would allow hearings only for circuit and district nominees when both senators from the states where vacancies arose returned blue slips. The Chair has maintained that practice by patiently and cautiously allowing home state senators, especially Democrats, adequate time to comprehensively assess nominees. Indeed, Grassley vowed to retain this approach in a 2015 Des Moines Register opinion piece and in a 2016 post-election statement to the Wall Street Journal, while Leahy recently remarked that Grassley said “he was going to follow the same procedures as chairman [and] had never broken his word” to Leahy over three decades.... Sen. Grassley should not jeopardize his fair and efficient Judiciary Committee stewardship or his cordial relationship with Democrats by conducting a hearing that includes too many nominees for the committee to assess effectively.
Correcting Misinformation on Blue Slips (People For blog, 08/11/17)
Paul Gordon: without that positive blue slip from both home state senators, the chair has traditionally put the nomination on hold, not scheduling a hearing at all.
Democrat Patrick Leahy adhered strictly to this practice when he chaired the committee during George W. Bush’s last two years and Barack Obama’s first six. So did Republican Chuck Grassley during Obama’s last two years.... As described in a July 31 PFAW edit memo, conservatives are demanding that Democrats submit blue slips much earlier for Trump nominees than was the case for Obama nominees. ... For circuit vacancies where blue slips from GOP senators were ultimately returned for a nominee to fill that vacancy, there was an average of 205 days between the president’s first nomination and the eventual hearing.... President Trump hasn’t even been in office that long! Moreover, that figure actually understates the delay, because it only includes instances where the GOP senators eventually returned their blue slips approving of a hearing. But there were many instances when the blue slips were never returned ... Democrats have always respected GOP senators’ blue slip privileges, and a Democratic president’s nominees have never been confirmed without both blue slips being returned.
Right-Wing Pressure on Democratic Senators on Judges: “Do As We Say, Not As We Do” (People For blog, 07/31/17)
Paul Gordon: this pressure campaign—accusations of slow-walking combined with threats to make “exceptions” to the blue slip rule—can succeed only if Republicans hide two basic and indisputable truths:
1. Republican refusals to agree to hearings by submitting blue slips have been respected 100% of the time—regardless of the reason or lack thereof, regardless of the nominee, regardless of the party of the president or chairman, and regardless of the need to fill the vacancy as soon as possible; and
2. Republicans are demanding that Democrats submit blue slips much earlier for Trump nominees than was the case for Obama nominees.
Justice Joan L. Larsen – Nominee to the U.S. Court of Appeals for the Sixth Circuit (Vetting Room, 07/07/17)
Harsh Voruganti: For critics of Larsen’s nomination, the best argument is procedural. In nominating Larsen, the Trump Administration ignored decades of precedent and failed to consult with Michigan senators. As such, Sen. Debbie Stabenow and Sen. Gary Peters are well within their rights to refuse to return blue slips and demand that the Administration engage in good faith consultations. ...
Larsen’s expansive views on presidential power are also likely to raise concerns among senators. Her 2006 op-ed, and her statement that the president could claim to protect the nation by violating the law would raise concerns among those who favor a limited executive. Additionally, with the emoluments clause suits proceeding against President Trump, senators may also raise Larsen’s writings on the related incompatibility clause. Furthermore, some senators may raise Larsen’s votes in Yono and Hecht to suggest that she is biased against civil plaintiffs.
The Most Important Question for Trump Judicial Nominees: How much executive authority do they think the president has? (Slate.com, 07/05/17)
Peter M. Shane: Donald Trump’s outsourcing the selection of federal appellate judges, including Supreme Court Justice Neil A. Gorsuch, to the Federalist Society. ... Michigan Supreme Court Justice Joan Larsen, a nominee to the 6thCircuit, wrote approvingly of a President George W. Bush “signing statement” in which Bush indicated he was not necessarily bound by the anti-torture provisions of a 2005 emergency appropriations act…. there are also some nominees who should be deemed utterly disqualified for lack of judicial temperament and explicit hostility to constitutional rights. Damien M. Schiff, a senior attorney at the Pacific Legal Foundation and nominee for the U.S. Court of Federal Claims, has called Justice Anthony Kennedy “a judicial prostitute.” Writing under the pseudonym G. Morris, attorney John K. Bush, a nominee to the U.S. Court of Appeals for the 6thCircuit, has written inflammatory and demeaning anti-LGBTQ blog posts for an ultraconservative website run by his wife.
The Courts Have Halted Trump’s Bigoted Policies, But the Senate Wants to Confirm All His Judges (Center for American Progress, 06/12/17)
Billy Corriher and Anisha Singh: Many federal judges will consider these questions of executive power and government discrimination during the next few years, and President Trump could nominate hundreds of judges for lifetime appointments that last decades. ... Michigan Supreme Court Justice Joan Larsen has been nominated to the U.S. Circuit Court of Appeals for the 6th Circuit, and she has a broad view of the president’s authority over national security. ... Justice Larsen, who had been a judge for less than a year before she found herself on President Trump’s list of potential Supreme Court nominees, co-authored a classified OLC brief on whether suspected terrorists can challenge their indefinite detention in court.... Before confirming any of President Trump’s judicial nominees, the Senate must demand to know whether they will rubber-stamp his discriminatory agenda.
The Consultation Double-Standard (Vetting Room, 06/09/17)
Harsh Voruganti: Let’s compare excerpts from the Senate Judiciary Questionnaires of ... judicial nominees: ... The contrast is stark. Compared to the Obama Administration, the Trump Administration has engaged in no pre-nomination consultation with Democratic Senators, instead cutting them out of the process. Now, Senate Republicans are debating whether to support their Democratic colleagues on this issue, or to cut off one of their only avenues for recourse: the blue slip.... On March 2, 2009, shortly after President Obama had been sworn into office with a large Democratic Senate majority, all 41 members of the Senate Republican conference sent him a letter with a clear missive: consult Republican home-state senators on nominees, or face a filibuster.... To his credit, President Obama worked assiduously to engage Republican Senators on judicial nominees, allowing them to name circuit and district court candidates from their states, and refusing to nominate judges when he could not reach an agreement with home-state senators. For his part, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) backed up his Republican colleagues by refusing to move forward with any nominee who did not have positive blue slips returned from both home-state senators, regardless of their party.
In the six years that President Obama and Chairman Leahy served together, two circuit and seven district court nominees were blocked based on senatorial courtesy and blue slips .... When Republicans took over the Senate majority in 2014, new Chairman Chuck Grassley continued to strictly enforce senatorial courtesy and blue slips. During the last two years of the Obama Administration, blue slip use by Republicans ramped up, and the following nominees were blocked .... Tradition and principles aside, there are many practical reasons for keeping the blue slip.... While Senate Republicans may be able to muscle through a judge being blocked only based on ideology, it is hard to see them pushing a judge whose nomination was made with no consultation whatsoever.
In other words, if the Trump Administration wants to see these nominees move, they’d do well to bring home state Democrats on board.
How Trump plans to remake the lower courts (The Hill, 05/24/17)
Opinion by Prof. Jonathan R. Nash: Justice Joan Larsen (currently a Justice on the Michigan Supreme Court) for a seat on the United States Court of Appeals for the Sixth Circuit and Justice David Stras (currently a Justice on the Minnesota Supreme Court) for a seat on the United States Court of Appeals for the Eighth Circuit — were on the list of 21 names from which, during the presidential campaign, Mr. Trump promised to select his nominee to replace deceased Supreme Court Justice Antonin Scalia ... suggests continued influence of the Federalist Society and the Heritage Foundation.... President Trump has nominated Damien Schiff to a seat on the United States Court of Federal Claims. [The court's docket includes] claims for “Takings” of private property.
The nomination of Judge Schiff is especially interesting, since Schiff has been serving as a lawyer with the Pacific Legal Foundation, a self-described national conservative/libertarian public interest law firm.
In that capacity, Schiff has argued in favor of a broad understanding of compensable Takings. Thus, his nomination to the Court of Federal Claims may signal the President’s desire to augment the protection of private property rights against government infringement.
Trump Is Disregarding Senate Norms to Get His Judges on the Bench (Center for American Progress, 05/12/17)
Jake Faleschini and Billy Corriher: Trump ignored the traditional vetting role of the American Bar Association, bypassed state judicial nominating commissions, and failed to consult with home-state senators.... Senators are in the best position to ensure that judicial nominees are well-respected in their local legal communities. ... Sens. Al Franken (D-MN) and Chuck Schumer (D-NY) both released statements on Monday criticizing the administration for failing to consult with home-state senators about the recent slate of nominees.... Trump’s outsourced judicial selection process has led to several worrisome nominees.
PRESIDENT TRUMP NOMINATES JUDGES EVEN HE COULD LOVE (New Yorker, 05/11/17)
Jeffrey Toobin: “On Monday, President Trump announced his first group of lower-court nominations to the federal bench. The list illustrates how differently Democratic and Republican Presidents have approached the task of making judges: it comes down to ideology versus diversity. ... Republicans since Ronald Reagan have recognized the power of federal judges to move the country in a conservative direction. Trump’s nomination of Neil Gorsuch to the Supreme Court showed that the new President belongs to the same tradition, and his ten judicial nominees—five to the circuit courts of appeals and five to the district courts—reveal that he will continue to use the courts to advance his political agenda.”
Trump Judicial Nominees (PrawfsBlawg, 05/10/17)
Prof. David Fontana: his judicial nominations so far have reflected what I blogged about previously: the strength of the judicial nominations part of his party.... I recently wrote an essay for a symposium in the Wisconsin Law Review about the relatively “cooperative” approach to judicial nominations utilized by the Obama Administration. The Obama Administration’s first nominee to the circuit courts was David Hamilton, a centrist district court judge in Indiana with established ties to both political parties. Hamilton was not particularly young, not particularly famous, and was the only circuit court nominee announced the day he was announced. By contrast, many of Trump’s nominees announced this week are very connected in the Republican Party, very young, and very known—and he announced ten nominees in one day.
Senate Democrats have the power to stop Trump's judge picks: Use it! (Daily Kos, 05/10/17)
Joan McCarter: Luckily, as of now, Democrats still have some power: the blue slip.... The custom in the Senate Judiciary Committee is for the chairman to hold off on bringing up nominees until their home-state senators sign off with so-called blue slips. Of course, the other tradition which Trump completely ignored in these cases is to get the names of his nominees through a negotiation process with those same senators. That's not what happened.
The Trump Judiciary (People For blog, 05/08/17)
Paul Gordon: Conservatives are hoping for nominees who will regularly favor the powerful and fail to recognize the constitutional values of equality and liberty.... In addition to the scrutiny usually given to nominees, we must also be on the lookout for efforts to not just create a right-wing judiciary, but a Trump Judiciary.
We must protect our federal courts, so that they can protect us. The records of all of today’s nominees must be examined very closely.
Trump has just begun massively reshaping American appeals courts (Vox, 05/08/17)
Dylan Matthews: By putting Larsen (who’s only 48), Stras (42), and Thapar (48) on appeals courts, Trump is further burnishing their credentials for future Supreme Court vacancies. ... Make no mistake: Larsen, Stras, and Thapar are all reliable conservatives. Larsen served in the Justice Department's Office of Legal Counsel in 2002-’03, when Jay Bybee and his deputy John Yoo were laying the groundwork for the Bush administration's torture regime. She also clerked for Antonin Scalia, and praised him in a eulogy for his conservative, textualist insistence that “statutes, cases and the Constitution were to be read for what they said, not for what the judges wished they would say.”
Stras's campaign site for reelection to the Minnesota Supreme Court stressed that he thought judges should "faithfully interpret and apply the Constitution and laws passed under the political process, not follow their own political leanings or personal preferences." Brian Fitzpatrick of Vanderbilt Law, who researches federal courts, told Bloomberg BNA that Thapar was "very Scalia-like and Thomas-like" in his jurisprudence.
And all three, tellingly, were included on Trump’s Supreme Court shortlist, which was compiled by the conservative Federalist Society’s Leonard Leo....There are now more than twice as many district and appeals court vacancies as when President Obama took office
Trump Is Going to Lose It When He Finds Out About This Obscure Senate Rule (New York Magazine, 05/08/17)
Ed Kilgore: Current Judiciary Committee Chairman Chuck Grassley, like his immediate Democratic predecessor Pat Leahy, has been a staunch defender of the blue slip tradition. ... Both Stras and Larsen are from states with two Democratic senators ... Grassley and other Republicans will have to decide whether their short-term interest abolishing the blue slip tradition outweighs their long-term interests in maintaining it for use against future Democratic presidents. And Democrats may figure out ways to use blue slips carefully and strategically to resist an ideological overhaul of the federal courts without unduly provoking Grassley
Trump SCOTUS Short-Lister Joan Larsen Is a Fan of Executive Power and Presidential Signing Statements: Examining the record of the Michigan Supreme Court Justice (Reason.com, 01/05/17)
Damon Root: If Larsen does get the nod from Trump, the Senate Judiciary Committee should examine her past statements in support of expansive executive power.
On September 13, 2006, while working as a law professor at the University of Michigan, Larsen penned an op-ed for The Detroit News defending the use of presidential signing statements by President George W. Bush. Throughout his presidency, Bush issued hundreds of such statements, in which he asserted his independent authority to reject or ignore parts of the very statutes that he himself had signed into law. ... Larsen came out firmly in defense of Bush's actions in this instance. The outrage over signing statements "is misplaced," she insisted. "Denying the president a constitutional voice is the real threat to our system of separated powers." After referring to "the anti-torture legislation that sparked much of this controversy," Larsen offered this glowing summary of Bush's signing statement: "If circumstances arose in which the law would prevent him from protecting the nation, he would choose the nation over the statute."
That is one way of looking at it. Here is another: If the president thinks the law is stopping him from "protecting the nation" (as the president defines it), then the president gets to act above the law.
That is, to say the least, a very expansive view of executive power. If Trump does nominate Larsen to SCOTUS, the Senate Judiciary Committee should ask her why she thinks that view is consistent with the Constitution.