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Judicial candidates should be less partisan and more representative (MinnPost [MN], 09/21/17)
Joan Growe, former Minnesota secretary of state: the controversy over the nomination of Justice David Stras to serve on the Eighth U.S. Circuit Court of Appeals matters so much. ... Indeed, in their rush to pack our courts with activist conservative judges, President Donald Trump and congressional Republicans have cast aside long-held procedures that were designed to protect the impartiality of the federal bench, including the “blue slip” process that allows home-state senators participate in selecting judges who best represent their states’ citizens. This dangerous trend is part of the reason why, like former Vice President Walter Mondale and many others, I applaud Sen. Al Franken for taking a stand against inappropriate politicization of the judiciary by opposing Justice Stras’ nomination. But that is only part of the story. The Trump administration’s continuing refusal to consult with home-state senators before nominating judges threatens to make our courts not just more partisan, but less representative.... It took more than 100 years before a woman, District Court Judge Diana Murphy, was named to sit on the Eighth Circuit Court of Appeals. Judge Murphy would remain the only woman on the court for nearly two decades, and with her move to senior status this year, the 11-judge panel will again be left with only a single female jurist in active status. ... three times since he took office, President Trump has had an opportunity to nominate one of these women to the Eighth Circuit, and three times, he has chosen not to do so.... This is part of a pattern. For example, Trump has nominated 42 people to serve as U.S. attorneys for districts across the country, only one of whom is a woman."

Trump's Texas Judicial Nominee Jeff Mateer Is Unfit to Serve (People For blog, 09/21/17)
Paul Gordon: Just when you think Donald Trump’s judicial nominees can’t get any more extreme, along comes Jeff Mateer of Texas. Yesterday, CNN and Right Wing Watch reported on Mateer’s long history of extremism against LGBTQ people, including his assertion that transgender children are part of “Satan's plan,” his defense of dangerously harmful “conversion therapy,” and his belief that allowing people to marry someone of the same sex would lead to allowing people to marry animals.... Feinstein is right: This is about his ability to not only to judge without bias, but also to dispel any appearance of bias. ... He lacks the basic qualities that are necessary for our judicial system to work. The Senate should reject Mateer’s nomination, and do so overwhelmingly.

Commentary: Opposition grows as Trump seeks to make federal judge out of NC voter suppression champion (Progressive Pulse [NC], 09/21/17)
Rob Schofield: As reported in this space last week, the chorus of opposition to President Trump’s absurd nomination of one of North Carolina’s most notorious far right attorneys to a lifetime appointment as a federal judge continues to grow. This is from a letter issued yesterday by the North Carolina NAACP ... The letter goes on to detail numerous instances in which Farr has dedicated much of his professional career to the disenfranchisement of African American voters

Editorial: Federal court vacancy must be filled promptly (Buffalo News [NY], 09/21/17)
"The atrocious delays in the U.S. District Court in Western New York mean that neither plaintiffs nor defendants are getting the justice they deserve. It is a travesty that requires immediate attention. Part of that travesty is that there has been a vacancy on the bench for years. The quickest remedy for that would be to confirm Kathleen M. Sweet for the job. Sen. Charles E. Schumer, D-N.Y., put forth her name more than two years ago, and then-President Barack Obama recommended her for Senate confirmation. The Judiciary Committee approved her nomination more than a year ago, but her nomination remains stalled in the Senate. And, with a Republican president in office, there is talk of GOP-friendly nominees in her place. However, Sweet is highly qualified and would bring welcome gender diversity to the bench.... The long-term solution is to add another judge to the allotted four active judgeships in what is the nation’s seventh-busiest district.... There is a vacancy on the bench. It must be filled as soon as possible, then attention must turn to adding another judgeship."

Trump Judicial Nominee Thinks Trans Equality is ‘Satan’s Plan’ (Dispatches from the Culture Wars blog, 09/21/17)
Ed Brayton: Donald Trump’s nominees to the federal bench have been almost uniformly horrible in every possible way. Some of them are little more than b-list right-wing outrage bloggers. And one of them now under consideration thinks that laws that push for trans equality are part of “Satan’s plan.” ... "Jeff Mateer ... If confirmed by the US Senate, he will serve on the US District Court for the Eastern District of Texas."

One of Trump’s most radical judicial nominees in the spotlight (Maddow Blog {MSNBC], 09/21/17)
Steve Benen: CNN yesterday put the spotlight on one of Donald Trump’s most radical judicial nominees.... And as startling as the CNN report is, it’s really just the start. Right Wing Watch published a piece yesterday taking a closer look at the judicial nominee’s radical background, which seems like it should be disqualifying for the judiciary. In case this isn’t obvious, keep in mind that if Jeff Mateer is confirmed by the Senate Republican majority, it’s a lifetime appointment to the federal bench.

EDITORIAL: Views on 'Satan's plan,' transgender kids and dark money cloud the credibility of two Trump nominees (Dallas Morning News, 09/21/17)
"Those who stand in judgment of others should approach the responsibility with a clean, objective slate. Two recent Trump nominees, Jeff Mateer and James "Trey" Trainor, however, appear to fail this simple test. Mateer, whom President Donald Trump picked this month to fill a federal judgeship vacancy for the Eastern District of Texas, described transgender children as evidence of "Satan's plan" in a 2015 speech for First Liberty Institute, a religious liberty advocacy organization. Mateer, who serves as Texas' first assistant attorney general, didn't stop there. In other public comments, he complained that states were banning gay conversion therapy and said same-sex marriage would lead to polygamy and bestiality.... his comments are inflammatory, abhorrent and scientifically unproven — and particularly disconcerting coming from a judicial nominee who could hear cases involving transgender issues. It's easy to question whether his judicial philosophy would fall within today's political norms. Truth and accuracy are the most important qualities a judge can bring to the post, and Mateer's comments raise serious questions about his demeanor for a seat on a powerful federal bench."

PRESIDENT TRUMP IS REWARDING A LAWYER WHO HAS FOUGHT TO BLOCK THE BLACK VOTE WITH A PLUM FEDERAL JUDGESHIP (Newsweek, 09/21/17)
Alexander Nazaryan: Trump, who has repeatedly made unfounded accusations of voter fraud, nominated Farr in July to the Eastern District in North Carolina, the longest judicial vacancy in the nation.

Yes, questions of religion can be fair game for Senate confirmation hearings (Patheos, 09/20/17)
Andrew L. Seidel: I’m one of the few lawyers in the country to have litigated the religious test clause of Article VI and can say with confidence that there is simply no constitutional conflict in questioning Barrett’s fitness for office or public trust. Barrett chose to make religion a relevant question for federal judges when she penned an article on that very subject.... The issue is not the religious belief itself, but the ability of that nominee to honor the oath of office.

Bigotry Is as Bigotry Does: Another Trump judicial nominee who appears completely un-vetted. (Esquire, 09/20/17)
Charles P. Pierce: According to CNN, Mateer has been keeping some interesting company, and he has some equally interesting views about the place his LGBTQ fellow citizens should have under our law and in our society.... It’s becoming exceedingly plain that these nominees are being vetted by unelected denizens of the wingnut-welfare industrial complex.

Obergefell Is Already Under Attack: Trump is laying the groundwork to overturn marriage equality. (Slate.com, 09/20/17)
Mark Joseph Stern: The latest confirmation of this goal arrived on Wednesday, when CNN revealed that a new Trump district court nominee, Jeff Mateer, recently condemned LGBTQ people in dehumanizing terms.... Trump nominated Mateer to the U.S. District Court for the Eastern District of Texas earlier this month. On the same day, the president also nominated Matthew J. Kacsmaryk to the United States District Court for the Northern District of Texas. Mateer and Kacsmaryk are colleagues at First Liberty Institute, a conservative legal advocacy group that opposes LGBTQ rights, including nondiscrimination measures that protect gay and trans people. Although Kacsmaryk’s public statements are not flamboyantly bigoted, his choice of employment suggests that he shares Mateer’s beliefs about LGBTQ rights. A third nominee, Stephen S. Schwartz, has devoted much of his career to defending anti-trans measures in court. Trump wants to place him on the U.S. Court of Federal Claims. Will the Senate confirm Mateer, Kacsmaryk, and Schwartz? I don’t see why not. In July, Senate Republicans pushed through John K. Bush, an anti-gay blogger and conspiracy theorist who used the word faggot in a speech. Republicans on the Senate Judiciary Committee have also approved Damien M. Schiff, a lawyer who declared in 2009 that a California law prohibiting bullying falsely taught “that the homosexual lifestyle is a good, and that homosexual families are the moral equivalent of traditional heterosexual families.”

Letter: Nominate Ong for Southern District of Indiana again (Indiana Lawyer, 09/20/17)
Carl Tobias: In February 2016, President Barack Obama nominated Winfield Ong, who has served as an assistant U.S. attorney in the Southern District of Indiana for more than 20 years, to a vacancy on the Southern District. Ong is a highly qualified, moderate nominee, whom Indiana Sens. Dan Coats (R) and Joe Donnelly (D) powerfully supported. In June 2016, the Senate Judiciary Committee approved Ong without dissent. Nevertheless, he languished on the floor until his nomination expired, mainly because Republicans refused to permit his confirmation debate and vote. Because Ong is a strong, mainstream nominee and the Southern District of Indiana needs this opening filled, President Donald Trump must renominate — and the Senate should confirm — him.... Sen. Todd Young (R) and Sen. Donnelly should urge President Trump to promptly nominate Ong again, just as he recently renominated five other experienced, moderate Obama nominees who had previously earned committee approval as Ong did.

Justice Allison Eid – Nominee for the U.S. Court of Appeals for the Tenth Circuit (Vetting Room, 09/20/17)
Harsh Voruganti: Eid has carved out a pattern as the most conservative justice on the court, frequently voting in favor of narrow interpretations of criminal and civil protections.... Eid has worked on the bench to narrow avenues for tort remedies, including limiting liability,[10] reading affirmative defenses broadly,[11] and expanding immunity.[12] ... Eid also takes a conservative view of criminal procedural protections, interpreting the Fourth, Fifth, and Sixth Amendments and their protections narrowly, and frequently voting against motions to suppress.... Eid defends New Federalism against critiques that it is too formalistic, arguing that the Court’s decisions striking down broad federal schemes recognize the value of federalism.[33] In another article, Eid argues that formalism in constitutional interpretation helps to “counteract the Justices’ inherent tendency to nationalism.”[34] Similarly, Eid also argues for a limited role for the federal government in other contexts. In one article, she disputes the argument that the Property Clause of the U.S. Constitution gives the federal government broad authority to regulate environmental policy.[35] In another, she notes that the Supremacy Clause is not a “repository of congressional power” but rather a mere conflict-of-laws provision.[36]... Eid has written and spoken repeatedly on tort law, usually in support of conservative tort reform.... Eid is an ideal judicial candidate from a conservative perspective.

Trump Anti-LGBTQ Judicial Nominee Spoke At ‘Kill The Gays’ Conference, Called Trans Kids Part Of ‘Satan’s Plan’ And More (Right Wing Watch, 09/20/17)
Miranda Blue: CNN reported today that Jeff Mateer, a former attorney for the Religious Right legal group First Liberty Institute who President Donald Trump recently nominated to a lifetime seat as a federal district court judge in Texas, has a long history of extreme anti-LGBTQ positions, including saying that transgender children are part of “Satan’s plan” of “destruction” and speaking at a 2015 conference organized by Kevin Swanson, a far-right pastor who has advocated for the death penalty for gay people. A Right Wing Watch review of others of Mateer’s speeches and interviews further reveals a clear hostility toward legal protections for LGBTQ equality and reproductive rights.

EDITORIAL: Bad Faith? The Confused Debates Over Religion’s Role in Politics (Commonweal, 09/20/17)
"Inquiring about a nominee’s religious convictions, especially a nominee as outspoken about her faith as Barrett, is hardly the kind of formal religious test forbidden by the Constitution. Critics of Feinstein and Durbin ignore the simple fact that exploring the relationship between a judge’s religion and the discharge of her duties is perfectly legitimate.... Asking a judicial nominee to explain the statements she has made about the relationship between her faith and her understanding of the law is fair game, especially when lifetime tenure is at stake.... Barrett’s work in particular cries out for such questioning. ... it is not bigotry to ask questions about such matters."

Voluntary Integration Decisions Take Center Stage in Debate over Eighth Circuit Judicial Nomination (Education Law Prof Blog, 09/20/17)
Derek Black: five votes support every position that Justice Kennedy took and no more than four votes support any other position on any other issue. In short, there is no way to get around the fact that is opinion represents the holding of the court. All three Courts of Appeals that have taken up the issue, along with U.S. Departments of Education and Justice, agree that Justice Kennedy’s opinion is controlling. This uniform judgment, particularly on a case of such importance, is what makes David Stras’ prior essay on Parents Involved curious. He wrote “many in the media and blogosphere are putting way too much emphasis on Justice Kennedy’s separate opinion in these cases.” ... Stras’ perspective is curious because it overlooks key details in the Court’s opinions and does so with a skepticism of school integration. His point appears to be to minimize the importance of Kennedy’s crucial decision, rather than accept its’ import: racial diversity and integration are compelling interests and states are free to pursue them under a number of different circumstances. Kennedy’s own words negate Stras’ argument that there is not much distance between the plurality opinion and Kennedy’s.... Stras acknowledges that Justice Kennedy’s opinion is controlling in most respects, but that only leads Stras to his third point that following Justice Kennedy’s in all respects is dangerous.... It is hard to say what drove Stras’ essay, but if it is the latter, those who are generally committed to civil rights are understandably wary of his nomination.

Trump Judicial Nominee: Transgender Kids Are Part Of ‘Satan’s Plan’ (Patheos, 09/20/17)
Michael Stone: Jeff Mateer, Trump’s federal judicial nominee to be a District Judge, is a dangerous religious extremist who rejects the separation of church and state, supports gay conversion therapy, claims gay marriage leads to bestiality, and believes that transgender children are evidence of “Satan’s plan.”

'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.

Respect Prerogative of Home-State Senators: President Obama nominated Justice Hughes. Sens. McConnell and Paul did not return their blue slips, and Justice Hughes never received a hearing. (Wall Street Journal, 09/19/17)
Sen. Dianne Feinstein, Ranking Member, Senate Judiciary Committee, Letter to the Editor: The editorial board completely discounts the history of the blue slip, which requires both home-state senators to sign off on judicial nominees from their state ("The Al Franken Standard," Sept. 13). Here are the facts: In 2016 alone, President Obama's nominations of Judge Abdul Kallon for the 11th Circuit, Justice Myra Selby for the Seventh Circuit, Rebecca Haywood for the Third Circuit and Justice Lisabeth Tabor Hughes for the Sixth Circuit did not move forward because they didn't receive two blue slips. Trump nominees have been confirmed to two of these vacancies, and nominees for the two other vacancies are pending. Consider the specifics of the Sixth Circuit vacancy in Kentucky: In March 2016, after the vacancy had been open for almost 1,000 days, President Obama nominated Justice Hughes. Sens. Mitch McConnell and Rand Paul did not return their blue slips, and Justice Hughes never received a hearing. Their prerogative as home-state senators was honored, and the prerogative of home-state senators should continue to be honored. The editorial board was silent when these highly qualified nominees were blocked ....

Maine Voices: We need to watch whom our representatives place on the courts (Portland Press Herald [ME] , 09/19/17)
Dmitry Bam: the next generation of federal courts will be defined by the men and women whom Trump appoints to office.... We must pay attention to who will serve as our protectors for the next 20, 30, even 40 years, and ensure that they are people we trust with that kind of responsibility. This is precisely why we should be outraged when the president attacks individual judges based on their national origin, questions their legitimacy or uses a litmus test to ensure that his nominees commit to decide constitutional cases a certain way.... judicial diversity is so important – and not just ethnic diversity or gender diversity, but also diversity of personal, political and life experiences. Unfortunately, this has not been a consideration for the president.... This lack of diversity skews judicial decisions in favor of some interests and against others, and makes the quality of our judiciary poorer as a result.

Dianne Feinstein had to ask Trump’s judge nominee about religion. Stop the attacks. (Sacramento Bee [CA] , 09/19/17)
Erwin Chemerinsky: The conservative criticism of U.S. Sen. Dianne Feinstein for her questioning of judicial nominee Amy Coney Barrett is misguided: On key issues, it was appropriate and necessary to ask Barrett, a Notre Dame law professor, about her beliefs.... This criticism of Feinstein is unfair and ignores the context of her questions. It was Barrett, not Feinstein, who made her Catholic faith an issue by writing about how Catholic judges should behave on the bench. Feinstein simply was asking Barrett whether her law review article reflected how she will behave as a judge. At no time, did Feinstein “attack” Barrett for her religious faith or suggest she should be denied confirmation because she is a Catholic.... The attack on Feinstein is misguided because it mischaracterizes her questions and ignores the basis for them. I fear that it is a smoke screen by the right to take attention away from a very conservative nominee that Trump is trying to put on the federal appeals court bench.

Blue slips & bipartisanship (Pittsburgh Tribune-Review [PA] , 09/18/17)
Glenn Sugameli, founder and head since 2001 of Judging the Environment (judgingtheenvironment.org), a nonpartisan federal judicial nominations project, Letter to the Editor: Current and former Republican and Democrat Senate Judiciary Committee chairmen explained the bipartisanship embodied in the home-state-senator blue-slip requirement for judicial nominees. This is why, as the editorial “Senate's blue-slip bounce: End this tradition” quoted me, “no circuit court nominees have been confirmed over the [blue slip] objection of one (or two) home state senators.” 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.”

Judges and faith (Ventura County Star [CA], 09/18/17)
Letter to the Editor, Brent Meeker: Jay Ambrose excoriates our Sen. Dianne Feinstein for questioning a Trump nominee to the federal bench, Amy Barrett, about how she would deal with conflict between Catholic doctrine and U.S. law. Barrett gave contradictory answers. Barrett wrote a law review article in 1998, "Catholic Judges in Capital Cases," in which she argues that a Catholic judge must put Catholic doctrine above the law. Feinstein was quite right to question her on this point.

These were fair questions, not a religious test (Washington Post, 09/17/17)
Letter to the Editor, Howard Pedolsky: Sen. Dianne Feinstein’s (D-Calif.) ... had it right. She asked if Amy Coney Barrett’s religious beliefs would influence her judicial decisions in preference to the letter of the law. This is a perfectly valid question.

EDITORIAL: U.S. Circuit Court seat should go to New Mexican (Las Cruces Sun-News [NM], 09/17/17)
"We believe the person replacing one of the three New Mexico judges on the federal 10th Circuit Court of Appeals should be a New Mexican. That would appear to rule out one of the five candidates who are being considered to replace Paul Kelly Jr. of Santa Fe. William Levi is not a New Mexican. ... Sen. Tom Udall, D-NM, has written a letter to White House Counsel Donald McGahn II stressing the importance of a New Mexico background for the position. “To gain my support, the president’s nominee must be a native New Mexican with a deep understanding of the legal issues that arise in the state, such as water rights, Indian law and public lands,” Udall wrote. We agree.... Whoever is selected could potentially serve for decades. That person needs to understand not only the law, but also our state."

Opinion More senators should ask Trump nominees about faith and the law (Los Angeles Times, 09/17/17)
Arthur D. Wahl, Letter to the Editor: Any judge who cites a subjective religious belief as the sole basis for her findings is neither objective nor offering debatable, deliberative opinion.... Keep asking, Sen. Feinstein.

Opinion More senators should ask Trump nominees about faith and the law (Los Angeles Times, 09/17/17)
Glenda Martel, Letter to the Editor: There is one fundamental reason obliging Sen. Diane Feinstein (D-Calif.) to query federal judicial nominee Amy Comey Barrett about her Roman Catholic faith: the constitutional prohibition against applying any “religious test” as a qualification for public office. ... Barrett’s nomination came from a president who notoriously pandered to devout conservatives to win an election. Plus, the religious right long has been unapologetic about seeking to pack the courts with justices who pass their faith-friendly litmus tests. Good for Feinstein. Our Constitution demands that she and other senators spare no query that may reveal Barrett’s inclination to affirm the religious tests she passed to secure her nomination.

EDITORIAL: Our view: Bounds and determined (East Oregonian, 09/15/17)
"In a letter to White House Counsel Don McGahn on Sept. 7, Merkley and Wyden wrote “unfortunately it is now apparent that you never intended to allow our longstanding process to play out. Instead, you have demonstrated that you were only interested in our input if we were willing to preapprove your preferred nominees ... disregarding this Oregon tradition returns us to the days of nepotism and patronage that harmed our courts and placed unfit judges on the bench.” The reason home-state senators have blue-slip power is so they can easily scuttle extremist choices, and force those who nominate judges to choose candidates that garner bipartisan support. Recently, however, the blue slips are being used in a hyper-partisan manner. That was the case when Republicans stopped Democratic nominees while Obama held office — and the tables have turned now. Democrats, despite Republican obstructionism, kept the rule in place. Republicans now want to narrow the rule, so their appointments (especially of circuit court judges) are harder to derail. It’s the same type of rule that allowed Republicans to stop Merrick Garland from having a hearing for a seat on the Supreme Court, which the GOP sidestepped to instead confirm Neil Gorsuch.... The push is toward even more extreme, politicized judges. Either side changes the rules at their own peril — no majority lasts forever and what may be to your short-term benefit could be to your (and the nation’s) long-term detriment.... Let Bounds be judged by a customary bipartisan nominating committee, have his résumé and judicial decision making tested and analyzed."

Op-Ed: Forget the critics, Feinstein did the right thing by questioning a judicial nominee on her faith and the law (Los Angeles Times, 09/15/17)
Nan Aron: . Although that line of questioning has drawn heated criticism, the senators had every right to pursue it: Barrett’s statements suggest that she believes a judge may put obligation to her faith ahead of her obligation to carry out all of her judicial duties. ... Barrett herself once forcefully advanced an argument that a judge’s faith plays an instrumental role in determining how she does her job. It is entirely fair for a nominee to be questioned about her own relevant writings.

Meet the Republican-Appointed State Supreme Court Justice Blocked by Blue Slips (Huffington Post, 09/15/17)
Christopher Kang, Former Deputy Counsel to President Obama: Meet Justice Lisabeth Hughes. Senator McConnell blocked her nomination to the U.S. Court of Appeals for the Sixth Circuit. By refusing to return his blue slip.... Senator McConnell was willing to—in his own description this week as he opposed blue slips—“blackball” one of his state’s Supreme Court Justices, twice-appointed by a governor of his own party.... for nearly two years, Justice Hughes waited in limbo, as the Obama White House consulted with Senator McConnell, trying to gain his approval. Finally, on March 17, 2016, President Obama pressed forward and nominated Justice Hughes .... remind those who disagree with Senator Franken’s substantive reasons for opposing Justice Stras’ nomination that Senator McConnell didn’t bother giving any substantive reason at all.... By any understanding of the precedents and standards of how blue slips have been used—including by Senator McConnell with respect to Justice Hughes—Senator Franken’s application has been more than fair.