Editorials and Opinion
President Trump’s New Nominee Called Justice Kennedy a “Judicial Prostitute” (Justice Watch, 05/26/17)
President Trump has nominated Damien M. Schiff, Senior Attorney at the Pacific Legal Foundation and member of The Federalist Society, for a seat on the U.S. Court of Federal Claims. As noted in his Senate Judiciary Questionnaire, in a series of blog posts on both the Pacific Legal Foundation’s Liberty Blog and his own personal blog entitled Omnia Omnibus, as well as in other writings, Schiff repeatedly demonstrates his extreme views and his unfitness to serve as a judge.
First, Schiff’s writings include personal attacks on the integrity of a sitting Supreme Court justice, advocates, and progressives. This alone demonstrates he lacks the judicial temperament to serve as a judge.
Second, Schiff’s writings demonstrate a blatant disregard for the importance of critical rights and protections relied on by millions of Americans and an extreme devotion to political ideology.
Finally, Schiff, who has devoted his career to weakening environmental laws and other legal protections, has made clear that he believes the role of a judge is not to neutrally apply facts to the law. Rather, he has called for a “reinvigorated constitutional jurisprudence, emanating from the judiciary” that would “overturn precedents upon which many of the unconstitutional excrescences of the New Deal and Great Society eras depend.” In achieving that goal, Schiff has called on President Trump to rescind environmental and regulatory reforms and has stated that OSHA is unconstitutional.
Republicans Love the Blue Slip (People For blog, 05/26/17)
Paul Gordon: in 2008, every Republican senator—including the current majority leader, Mitch McConnell— signed on to a letter vowing to oppose any judicial nominee who lacked support from a Republican home state senator. In other words, they insisted that both blue slips be submitted before doing anything on a nomination .... Then-Chairman Patrick Leahy, a Democrat, followed the blue slip practice the entire time he was chairman, during the presidencies of both George W. Bush and Barack Obama.... circuit courts have longtime vacancies that exist only because no hearing was held for an Obama nominee who got a blue slip from only one senator, not both ... When Chuck Grassley became chairman of the committee after the 2014 elections, he made a promise to Iowans in a local newspaper: ... "Over the years, Judiciary Committee chairs of both parties have upheld a blue-slip process, including Sen. Patrick Leahy of Vermont, my immediate predecessor in chairing the committee, who steadfastly honored the tradition even as some in his own party called for its demise. I appreciate the value of the blue-slip process and also intend to honor it." ... In 2014, Orrin Hatch—the committee’s longest-serving Republican and its former chairman—fiercely defended the practice of requiring both home state senators’ approval before moving on a judicial nominee: "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. … I’m glad Chairman Leahy has preserved the blue slip process. It should stay that way." ... Nebraska’s Ben Sasse (also a committee member) explains the central role that home state senators play both before and after nomination. ... Chairman Grassley should resist any pressure he is getting to change the blue slip policy.
Senate GOP used “blue slips” to block Obama judicial nominees, but now wants to trash the practice (Brookings, 05/25/17)
Russell Wheeler: "Blue slips” are blue-paper forms that Senate Judiciary Committee chairs send to home-state senators asking if they approve of judicial nominees in their states. During the Obama administration, a Democratic or Republican negative or unreturned blue slip killed the nomination. Pre-2009 chairs may have enforced laxer versions of the practice, but the 2009-16 chairmanships of Patrick Leahy (D-Vt.) and Charles Grassley (R-Iowa) allowed no exceptions. ... Senators used their blue slip prerogatives to forestall or veto nominations and give Trump over 100 in-place and announced vacancies, including over 30 that never had nominees.
Negative blue slips produced some dead-on-arrival Obama nominations, but the more pervasive impact of aggressive blue-slip were no nominations (“what’s the use?”) or extended White House-senator bargaining in search of mutually acceptable, or at least tolerable, nominees....Indeed, as to matters democratic, Obama’s elections, by fairly substantial majorities, should have given him greater authority to reshape the federal judiciary than did Trump’s, who squeaked into office with a substantial popular vote loss.
Protect the Senate: The Minority You Save May One Day Be Your Own (Morning Consult, 05/25/17)
Mac Campbell, OP-ED CONTRIBUTOR: As citizens, we should worry about the Senate and provide its members the political support they must have to withstand rabble-induced pressure to self-erode their power.
There is a quasi-judicial framework of rules and precedents that govern the Senate and equip minorities with the ability to sedate action and limit the tyrannical impulses of majorities, be they partisan or popular.... In the coming months, the mob will exert even more pressure on the Senate to enfeeble itself. ... Will Senate Republicans continue to respect the ancient “blue slip” prerogative that gives senators a modicum of sway over federal appointees who would govern in their home states? Perhaps.... Only informed and vigilant voters can enable the Senate to arrest its slide from the guardian of liberty to a gaggle of lemmings. Write your elected officials and express concern. The minority you save may one day be your own.
The conservative mind has become diseased (Washington Post, 05/25/17)
Michael Gerson, syndicated column: Those conservatives who believe that the confirmation of Justice Neil M. Gorsuch is sufficient justification for the Trump presidency are ignoring Trump’s psychic and moral destruction of the conservative movement and the Republican Party. Clinton, with a small number of changed votes, would have defeated Republicans. But Trump is doing a kind of harm beyond anything Clinton could have done. He is changing the party’s most basic moral and political orientations. He is shaping conservatism in his image and ensuring an eventual defeat more complete, and an eventual exile more prolonged, than Democrats could have dreamed.
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.
Commentary: Another new low: Trump nominates right-wing blogger to the U.S. Court of Appeals (Progressive Pulse [NC], 05/24/17)
Rob Schofield: There is more compelling evidence this week of the critical importance of progressives paying close attention to (and fighting back against) Donald Trump’s frightening plans for remaking our federal judiciary. ... As Supreme Court expert Ian Millhiser of the Center for American Progress explains in an excellent post, “this is not normal.” What’s more, [Sixth Circuit nominee John K.] Bush’s legal views are extreme on an array of issues: ... Of course, this is just the beginning if progressives don’t push back. As was explained in this post a couple of weeks back, 15% of the federal judiciary now stands vacant and awaiting Trump nominations. Simply put, for those who care about resisting Trumpism, there is no more important battle in the coming months and years than the fight for our courts.
Turns Out Trump’s 6th Circuit Pick has an Alter-Ego That’s a Super-Conservative Blogger (Law Newz, 05/23/17)
Opinion by Elura Nanos: here’s the real problem: this guy doesn’t look like he has any intention of being neutral. He’s diametrically opposed to anything that could be deemed “liberal.” Reminder, guys. This isn’t how judges are supposed to think. They can certainly have their own opinions, but it’s highly inappropriate for a federal judge to become a zealot the minute he sheds his robes.... There’s a place for tunnel-visioned political ideologues –but that place isn’t on the bench.
Trump names right-wing blogger who likened abortion to slavery to powerful appeals court: This is not normal. (Think Progress, 05/23/17)
Ian Millhiser: John Bush is a lawyer and the president of the Louisville chapter of the Federalist Society, an increasingly radicalized conservative legal group that’s played a major role in selecting Donald Trump’s nominees to the federal bench. Bush is also a blogger at a site called “Elephants in the Bluegrass,” where he’s written on subjects such as why slavery is like abortion or the virtues of shooting Obama supporters.
And, if President Trump has his way, Mr. Bush will soon add another title to his resume: judge of the United States Court of Appeals for the Sixth Circuit.... Bush’s rationale, in other words, wouldn’t just undermine public financing of campaigns — it would also hobble the government’s ability to perform many of its core functions.... Bush’s public statements and writings do not simply reveal political views that place him very far to the right. They also reveal legal opinions that are widely out of step with well-established law accepted by Democrats and Republicans alike. That’s not something that presidents typically look for in judicial nominees.
Revelation of off-color blog posts render McConnell-backed nominee John K. Bush unfit for a seat on the Sixth Circuit (Justice Watch, 05/22/17)
"Paperwork submitted by John K. Bush, President Trump’s nominee for the Court of Appeals for the Sixth Circuit, reveals that Bush has spent a decade writing inflammatory and, often, offensive blog posts for the website Elephants in the Bluegrass.... one common theme runs throughout his writings: Bush displays a remarkable contempt for any issue he deems liberal or progressive, often launching into personal attacks on individuals he disagrees with. Bush’s writings should disqualify him for a lifetime seat on the federal bench for two reasons. First, Bush’s writings raise serious concerns about whether, as a judge, he will be able to approach the issues presented to him with an open mind, applying the law to the facts of the case without regard to his personal ideology. Second, Bush’s distasteful rhetoric demonstrates that he lacks the judicial temperament necessary to serve as a federal judge."
Libertarian Legal Scholars Reject Trump Judicial Nominee's Views on 14th Amendment (Reason.com, 05/22/17)
Damon Root, senior editor of Reason magazine: Kevin Newsom, the former Alabama solicitor general recently nominated by President Trump to the U.S. Court of Appeals for the 11th Circuit, is the author of a January 2000 article in the Yale Law Journal in which he argues that the Supreme Court's 1873 decision in The Slaughter-House Cases correctly held that the Privileges or Immunities Clause of the 14th Amendment offers zero protection for economic liberty. That view is hotly contested by libertarian constitutional experts.Kevin Newsom, Trump's nominee for the 11th Circuit, falls in the Bork-Blackwell-Klukowski camp. In the Yale Law Journal, Newsom praised the Slaughter-House majority opinion for its "judicial restraint" and for its opposition to "the constitutionalization of laissez-faire economic theory." When it comes to the "economic rights claimed by the butchers" in Slaughter-House, Newsom maintained, the Court was right to conclude that "the 14th Amendment did not safeguard [them] against state interference."
Newsom's views on the 14th Amendment thus put him directly at odds with the flourishing camp of libertarian-minded lawyers, judges, and scholars whose influence on the conservative legal movement has been on the upswing in recent years.
It remains to be seen if this clash of constitutional visions will play any role in Newsom's confirmation hearings before the Senate Judiciary Committee.
Breaking: #SCOTUS Declines Soft Money Case; Thomas and Gorsuch Would Vote to Hear (Election Law Blog, 05/22/17)
Rick Hasen: This also tells us something about Justice Gorsuch. He was not shy at all — not only about being willing to wade into this very controversial area, but about announcing publicly his vote to hear the case (something he did not need to do). It could well be that he will be as conservative as Justice Thomas is in these cases. (Justice Thomas believes all campaign finance laws—including disclosure—should be subject to strict scrutiny and are likely unconstitutional.)
Republicans Are Laying the Groundwork For Their Normal Blue Slip Hypocrisy (Mother Jones, 05/22/17)
Kevin Drum: Patrick Leahy, the Democratic Judiciary Committee chairman from 2007-2014, applied the blue-slip rule impartially regardless of who was president. This was despite a vast level of obstruction from Republicans to all of Obama's nominees. On the one hand, good for Leahy. We could use more displays of integrity like this. On the other hand, Democrats lost out on a whole bunch of judges that they otherwise would have gotten confirmed.
By contrast, Republicans have a two-decade history of flipping the blue-slip rule whenever it conveniences them.
One Of Trump’s Judicial Nominees Blogged Under A Pen Name That Ted Cruz Was A “Sore Loser”: John Bush, one of President Trump’s federal appeals court nominees, wrote more than 400 blog posts under a pseudonym on a broad range of politically charged topics, including Trump’s campaign, Obamacare, and abortion. (BuzzFeed, 05/19/17)
Zoe Tillman: Bush’s blog posts reflect his personal opinions, and they touch on a number of issues that could come up at his confirmation hearing.
Bush wrote about his opposition to the Affordable Care Act, which is still the subject of litigation, and in September he called for it to be repealed and replaced. He’s expressed opposition to public financing of political campaigns, called the idea of trying terrorists in civilian courts “bone-headed,” and wrote in 2008 that the “two greatest tragedies in our country” were slavery and abortion.
There are also some off-color remarks.... Bush also wrote that, “The Democrats are trying to win with the same game plan as in 2008, only substitute woman for Black.”
Coalition Raises Money in Politics Concerns About Thapar Nomination (People For blog, 05/18/17)
Rio Tazewell: Yesterday a letter signed by 24 organizations was delivered to the Senate Judiciary Committee, which today approved the nomination of Judge Amul Thapar, President Trump’s pick to fill a seat on the 6th Circuit Court of Appeals on a party line vote.
In addition to being a co-author and signatory of the letter, PFAW delivered more than 25,000 petition signatures asking senators to reject this nomination given Thapar’s troubling views on the issue of money in politics. Judge Thapar has gone beyond the Supreme Court’s directives in his antagonism toward rules governing the financing of political campaigns, raising alarm among groups advocating for equality in our electoral process.
POINT OF VIEW: Florida shows bipartisan support for judicial nominees (Palm Beach Post [FL], 05/17/17)
Linda Geller-Schwartz, National Council of Jewish Women: President Donald J. Trump ... can act on an appeal from our two U.S. senators, Bill Nelson and Marco Rubio, to fill vacant seats in our federal courts.
These two senators have jointly asked the president to re-nominate three of President Barack Obama’s judicial nominees to Florida’s federal courts who had been vetted and approved by both senators, but left waiting for hearings .... Nelson’s and Rubio’s rare show of bipartisanship couldn’t come at a better time for Florida’s federal courts. There are currently seven federal judicial vacancies in Florida and five of them are formally classified as “judicial emergencies” ... With our courts already stretched razor thin, it only makes sense to move these qualified bipartisan nominees through the process rather than starting over from scratch. To underscore this point, Nelson and Rubio made clear in their letter that “timely action is needed as the two vacancies in the Middle District are considered judicial emergencies.”
The letter also refers to the failure of Senate leaders to take “timely action in the last Congress.”
Trump’s Justice: Neil Gorsuch will be the enduring symbol of a disastrous presidency. (Slate.com, 05/17/17)
Mark Joseph Stern: Gorsuch will be around for decades, helping to shape American law. But no matter how long he stays on the bench, his legacy—and his court itself—will be permanently tainted by Trump’s turpitude.
No matter what happened during Trump’s presidency, Gorsuch was destined to go down in history with an asterisk next to his name. The justice assumed a seat Republicans stole from President Barack Obama by refusing to hold hearings, let alone a vote, for Merrick Garland. This unprecedented blockade was an appalling political heist, diminishing the court’s independence in an effort to preserve its conservatism. Anyone who agreed to take this stolen seat was bound to be viewed as illegitimate by a broad swath of the country.
Trump wants to “break up the Ninth Circuit.” How would that help him? (Brookings, 05/16/17)
Russell Wheeler: seeking favorable venues is responsible advocacy. It’s why opponents of Obama’s policies challenged them in Texas federal courts.
The basic reason Trump wants to break up courts in the Ninth circuit is because he’s mad at their judges. A 1998 report of a statutory commission appointed by Chief Justice William Rehnquist to assess appellate structural alternatives reminds us that “It is wrong to realign circuits … or to restructure courts …because of particular judicial decisions or particular judges. This rule must be faithfully honored, for the independence of the judiciary is of constitutional dimension and requires no less.” (Disclaimer: I worked on the report while at the Federal Judicial Center.)
Trump has pivotal job ahead in selecting Keeley's replacement (Exponent Telegram [WV], 05/15/17)
Managing Editor Matt Harvey column: Trump’s replacement for U.S. District Judge Irene M. Keeley — who takes senior status Aug. 12, opening up her seat — could be pivotal to the future of North Central West Virginia. ... The president would do well to listen closely to recommendations from U.S. senators Shelley Moore Capitol, R-W.Va., and Joe Manchin, D-W.Va, because judicial appointments must be confirmed by the Senate, which already is fractured on many issues along party lines.
Keen observers of the court have pointed out some of the best qualities about Keeley.
Though she’s a Republican, she doesn’t let her party affiliation cloud her judgment when it comes to the law.
Keeley also has done a fine job of balancing compassion with protecting the public and sending policy messages through sentencing.
This is not the place for a purely political appointment.
While that could also be said about appointments for U.S. marshals and U.S. attorneys, it’s even more pivotal for a federal judge, who handles civil and criminal cases of the gravest importance.... Those who have practiced routinely and admirably in federal court on either side of the aisle also should receive ample consideration
Grassley signals he'll selectively allow Democrats to have a say on federal judges (Daily Kos, 05/12/17)
Joan McCarter: Senate Judiciary Chairman Chuck Grassley (R-IA) is uniquely capable of revising history and norms and traditions to fit whatever partisan agenda he has. An unprecedented Senate blockade of a completely qualified and non-controversial Supreme Court nominee? Sure, we can do that, because this is the last year of the president's term in office. That's completely normal, said Grassley of the Merrick Garland blockade. He's got a new one now, this time how it's customary to let home-state senators weigh in on some federal judges, but not others. In other words, he's going to let Donald Trump have his key judges, and pretend like he's still recognizing Judiciary tradition.
Grassley Rewrites Senate History to Grease the Wheels for Trump’s Judges (Medium, 05/12/17)
Kyle Barry, LDF Policy Counsel: Senate Judiciary Committee Chairman Chuck Grassley has revealed that he is willing to trash longstanding Senate tradition and undermine his Senate colleagues to hand control of the federal courts over to President Donald Trump. Grassley said that he will allow Trump to go over the heads of Democratic senators to fill federal appeals court vacancies in their home states “because that’s the way it’s been.” Grassley’s statement is both historically inaccurate and dangerous .... Since 1951, only two judges have been confirmed despite a negative blue slip, and both were district court judges appointed by Republican presidents. Grassley’s predecessor, Democratic Senator Patrick Leahy, applied the rule strictly and never held a confirmation hearing unless both home-state senators approved.... Indeed, four of the current circuit vacancies exist only because Republican senators refused to return blue slips for Obama nominees .... of the 17 total Obama nominees blocked by blue slips, just one was a white man; 10 were women and 10 were African American.
Opinion: Why it would be bad for Trump to break up the 9th Circuit Court (San Jose Mercury News [CA], 05/12/17)
Ian Samuel and Brian Goldman: Since John Roberts became Chief Justice in 2005, the Ninth Circuit has never been the most-reversed court of appeals. Last year, it decided 6,896 cases; the Supreme Court reviewed just 11 of them, about 0.2 percent.
Even among the tiny handful of cases the Supreme Court chose to hear, it reversed in eight (about 72 percent). That’s in line with the Supreme Court’s fairly high rate of reversing all the courts it reviews (about 70 percent). ... the court’s scope is an enormous benefit. For one thing, it allows the West’s expansive federal lands and technology industry to enjoy one stable body of law administered by one court.... And the Ninth Circuit has used its resources to become the most accessible federal court in the country ... If the complaint is that the Ninth Circuit is “too liberal,” this is especially strange: it would create a new “Twelfth Circuit” with an even larger majority of judges appointed by Democratic presidents. ... Punishing an independent court because of partisan politics makes us queasy.... the Ninth Circuit has long protected the public from the government’s ill-reasoned fits of pique. We hope the public will return the favor this time.
[Editorial] Gazette opinion: Billings Welcomes Vice President Pence (Billings Gazette [MT,WY], 05/12/17)
"We don't think Montana interests will be well served by trying to split the Ninth Circuit Court of Appeals. We can't help but see this move as a blatant power grab by the Trump administration to pack a new court, and exact revenge for unfavorable rulings to the Trump administration. Montana has been well served by the Ninth. We have had great representation there, and would point out that Chief Judge Sidney Thomas is from Billings."
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.
Trump judicial nominee offered blueprint to allow Trump to target the press: Get ready to “open up our libel laws.” (Think Progress, 05/11/17)
Ian Millhiser: the Supreme Court put strict limits on when public figures could bring malicious libel suits against the press in its landmark New York Times. v. Sullivan case.
Trump, however, now wants to put someone on a powerful federal court who claimed that New York Times probably was “wrongly decided.”
John K. Bush is a Kentucky lawyer and the president of the Louisville chapter of the Federalist Society, a conservative legal group that plays a major role in selecting Trump’s judicial nominees. Trump nominated Bush to serve on the United States Court of Appeals for the Sixth Circuit.... Bush both endorsed originalism as his preferred method and named Sullivan as an example of a case that is not consistent with this method.
Democrats Can’t Stop Trump’s Agenda. But They Can Block His Judicial Nominees. Get ready for a hugely consequential Senate fight over blue pieces of paper. (Huffington Post, 05/11/17)
Jennifer Bendery: Trump is close to nominating David Porter to the Third Circuit Court of Appeals, a source familiar with the nomination process told HuffPost. President Barack Obama nearly nominated Porter, a Republican corporate attorney, to a district court in 2014 as part of a bipartisan package deal that also included Democratic judicial nominees. But progressive groups torpedoed that agreement by launching a campaign highlighting Porter’s ties to groups opposed to abortion rights, LGBTQ rights and gun control.
Porter’s nomination to the Third Circuit is expected to be announced in the next couple of weeks, per this source, and is being pushed by Sen. Pat Toomey (R-Pa.), one of Porter’s home-state senators ... Sen. Bob Casey (D-Pa.), Porter’s other home-state senator, has warned the White House he’s prepared to withhold Porter’s blue slip if Trump nominates him.
Casey has “serious concerns” with this nomination, said the source.... Republicans abused the hell out of the blue-slip tradition during Obama’s presidency. In some cases, they refused to turn in blue slips for judicial nominees they previously supported, which contributed to the emergency level of vacancies on the federal bench today.
Toomey knows a thing or two about blue slips. He refused to turn in his blue slip for Obama’s nominee to the Third Circuit, Rebecca Haywood. As a result, she never got a committee hearing and her nomination was returned to Obama.... “Blue slips are one of the few weapons that are left to protect the minority’s rights,” said Carl Tobias, a University of Richmond law professor and an expert on the judicial nominations process. “They also protect home state senators’ prerogatives to affect who is nominated from their states, which could be important for GOP senators who disagree with Trump.”... “Don’t forget,” added Tobias, “that blue slips were honored all eight years of Obama’s tenure and have a 100-year history.”
Trump judicial nominee John K. Bush has advocated stripping First Amendment protections from the press (Justice Watch, 05/11/17)
Lisa Nash: Bush, like Trump, believes New York Times v. Sullivan, the seminal case that articulated broad protections for members of the press covering public officials and actions, was wrongly decided.... at a 2009 Federal Society panel entitled The Constitution and the Importance of Interpretation: Original Meaning, after praising originalism, he discussed originalism’s application to the First Amendment. Bush emphasized “from an originalist perspective that New York Times v. Sullivan probably wasn’t correctly decided.”
Bob Casey ready to pick a blue-slip fight over the federal judiciary (Daily Kos, 05/11/17)
Joan McCarter: The lack of a blue slip has traditionally meant that that judge won't get a hearing. The current chairman, Chuck Grassley (R-IA) says he intends to honor that tradition. And Sen. Bob Casey (D-PA) is warning that he will exercise his right of refusal.... As of now, Republicans on the committee are saying they'll respect the blue-slip tradition. ... This is an issue Democrats must force.