Editorials and Opinion
Trump nominates hyper-partisan conservative activist to NC federal court vacancy: Why this is not “business as usual” and should not be condoned (NC Policy Watch, 07/18/17)
Rob Schofield: the GOP-dominated Senate is moving quickly to approve a bevy of new hardliners – including a conservative blogger from Kentucky named John K. Bush who authored scores of offensive posts under a pseudonym before Trump saw fit to nominate him to the Sixth Circuit Court of Appeals.... Last week, the conservative courts putsch reached North Carolina when Trump nominated a right-wing activist lawyer named Thomas Farr to fill a seat on U.S. District Court for the Eastern District – the oldest vacancy in the federal system. As readers will no doubt recall, the Eastern District seat has stood vacant for more than a decade – including the entire Obama presidency – thanks to Senator Richard Burr’s stubborn refusal to allow either of President Obama’s two nominees to receive a hearing. ... Unlike both of the individuals advanced by President Obama (federal prosecutor Jennifer May-Parker and veteran state court judge Patricia Timmons-Goodson) Thomas Farr is not an experienced public servant. Rather, he is a lifelong partisan activist who has spent four decades advancing the hard right agenda.... the hard and striking reality that:
a) Farr is yet another white male being nominated in an region that has never, in the entire history of the nation, been served by a federal judge of color (both May-Parker and Timmons-Goodson are African-American),
b) the Eastern District includes all of the counties in the state that are greater than 50% African-American in population and has the greatest percentage of African-Americans of any region in the state, and
c) Farr has dedicated big chunks of his career to abetting controversial conservative efforts with respect to voting rights of African-Americans,
Pa. needs more diversity in federal appeals courts | Letter (Express-Times [PA], 07/18/17)
Kadida Kenner, Why Courts Matter-PA: Last month the Trump administration nominates another white man for the Third Circuit Court of Appeals seat, a seat soon to be vacated by the retirement of Judge Marjorie Rendell. Even with Rendell on the bench, Pennsylvania has the second worst gender imbalance of all federal courts at 17 percent.
Sen. Pat Toomey blocked President Barack Obama's nominee to replace Rendell for the Third Circuit, Rebecca Haywood. For nearly a year, Haywood, an African-American and highly-qualified assistant U.S. Attorney from western Pennsylvania, waited for the opportunity for a Senate Judiciary Committee hearing. ... Haywood's confirmation would have only been the 21st federal court confirmation in Obama's last two years of his presidency, compared to Ronald Reagan with 83, Bill Clinton with 72 and George Bush with 68 confirmations during their final two years. Because of obstruction by Senate Republicans, there are more than 120 vacancies on our federal court benches.... There's a second opening on the Third Circuit. Toomey and Sen. Bob Casey should renominate Rebecca Haywood.
Casey, Toomey need to right the gender and racial imbalance on Pa.'s 3rd Circuit Appeals Court: Opinion (PennLive [PA], 07/18/17)
Guest Editorial By Kadida Kenner, Why Courts Matter - PA: the Trump administration decided to stay the course and nominate another white man for the 3rd Circuit Court of Appeals seat, a seat soon to be vacated due to the retirement of former Pennsylvania first lady, Judge Marjorie O. Rendell.
Even with Rendell on the bench, Pennsylvania has the second worst gender imbalance of all the federal courts in the nation at 17 percent.
U.S. Sen. Pat Toomey, R-Pa., blocked former President Barack Obama's nominee to replace Judge Rendell for the 3rd Circuit, Rebecca Haywood, when Toomey refused to submit his home-state blue slip allowing for a judicial hearing for Haywood.
For nearly a year, Haywood, an African-American and highly-qualified Assistant U.S. Attorney from western Pennsylvania, waited .... Haywood's confirmation would have only been the 21st federal court confirmation in Obama's last two years of his presidency, compared to Reagan with 83, Clinton with 72 and G.W. Bush with 68 ... There's still a second opening on the 3rd Circuit - Toomey and and U.S. Sen. Bob Casey, D-Pa., should re-nominate Rebecca Haywood.
Blue Slips: Safeguard or Relic for Federal Judicial Appointments? (Nonprofit Quarterly, 07/18/17)
Carole Levine: The makeup of the Senate almost ensures that nominees who are voted out of the Judiciary Committee will receive the needed 51 votes for approval in the Senate, especially since the filibuster is no longer an option. But if blue slips are honored by Grassley, they could stop a nominee from advancing to a hearing in the Judiciary Committee.... The practice of using blue slips to halt a nomination is, perhaps, now more important than ever before.
Your view: Renominate Obama pick for Third Circuit (Times Leader [PA] , 07/18/17)
Kadida Kenner: the Trump administration decided to stay the course and nominate another white man for the United States Court of Appeals for the Third Circuit, a seat soon to be vacated due to the retirement of former Pennsylvania first lady, Marjorie Rendell.
Even with Rendell on the bench, Pennsylvania has the second-worst gender imbalance of all the federal courts in the nation at 17 percent.
U.S. Sen. Pat Toomey, R-Zionsville, blocked former President Barack Obama’s nominee to replace Rendell, Rebecca Haywood, when Toomey refused to submit his home-state blue slip, allowing for a judicial hearing for Haywood.
For nearly a year, Haywood, an African-American and highly qualified assistant U.S. attorney from western Pennsylvania, waited for the opportunity to have a Senate Judiciary Committee hearing .... There’s still a second opening on the Third Circuit. Toomey and Casey should renominate Rebecca Haywood.
“Pa. needs more diversity in federal appeals courts” (CA3blog, 07/18/17)
Matthew Stiegler: Kadida Kenner of Why Courts Matter PA, had this letter today on LehighValleyLive. The letter decries the Third Circuit’s gender imbalance. It also calls for the renomination of Rebecca Haywood to fill the second open PA seat on the court, noting: "For anyone keeping score, Haywood’s confirmation would have only been the 21st federal court confirmation in Obama’s last two years of his presidency, compared to Ronald Reagan with 83, Bill Clinton with 72 and George Bush with 68 confirmations during their final two years."
We all expect better than these 2 Trump judicial nominations (Bangor Daily News [ME], 07/16/17)
Opinion by Mary L. Bonauto: the U.S. Senate will vote on whether to confirm John K. Bush and Damien Schiff to the federal bench. Neither man comes close to these standards, and through speeches, blogging and past legal activities, both have demonstrated hostility toward entire groups of people. Sens. Susan Collins and Angus King should lead the votes against their confirmation and send the message that we all expect better in judicial nominations.
Bush has a long history of offensive actions and writings that exhibit stereotyped thinking and hostility toward women and LGBTQ Americans.... Similarly, Schiff’s blogging and legal career demonstrate that he lacks judicially qualifying characteristics as well, epitomized by his reference to Supreme Court Justice Anthony Kennedy as a “judicial prostitute.” ... It is time to send a message that we Americans want qualified judges who will give everyone a chance based on the facts and the law. One of those vacancies is here in Maine
John Bush and Damien Schiff are Unfit to Serve as Impartial Federal Judges: Our tweeting president wants these two bloggers to serve on the federal bench. Their writings show they’re both too extreme. (Medium, 07/12/17)
Mike Zubrensky: the Senate Judiciary Committee is poised to debate and vote on two of the most demonstrably provocative federal judicial nominees in a generation: John Bush and Damien Schiff. And our Constitution’s system of checks and balances is at stake.
The question for the 20 senators who serve on the committee is whether the clearly expressed views of judicial nominees matter at all in their consideration to be federal judges.... The written records of these two judicial nominees are simply stunning.... the Trump White House likely did not know about Schiff’s surreptitious writings until after he was nominated. Majority Leader Mitch McConnell also likely did not know about Bush’s troubling writings at the time he recommended him to the White House.... we will learn if 20 senators on both sides of the aisle are comfortable with anonymous bloggers who have clearly demonstrated that they are unfit to serve as impartial federal judges. The Leadership Conference urges senators to reject these two nominees.
Check President Trump (Medium, 07/12/17)
Desiree Tims, League of Conservation Voters: This week, the Senate Judiciary Committee will vote to confirm or deny toxic nominees, John K. Bush and Damien Schiff. ... Some of the 22 judicial nominees for lower courts have egregious views regarding clean air, water, and common sense public health safeguards. This is especially true of Damien Schiff, who Trump nominated to serve on the U.S. Court of Federal Claims ... Schiff stated that “[the] problem with the [EPA] across the board [is] treating American citizens as if the[y] were not American citizens, [but] as if they were [sic] slaves.”
Renominate Gallagher for the District of Maryland (Washington Post, 07/11/17)
Carl Tobias: In September 2015, then-President Barack Obama nominated Stephanie Gallagher, a magistrate judge in the U.S. District Court of Maryland since 2011, to a vacancy on this court. Gallagher is an exceptionally qualified, moderate nominee whom Sens. Barbara Mikulski and Benjamin L. Cardin, both Democrats, powerfully supported. In May 2016, the Senate Judiciary Committee approved Gallagher without dissent.
Nonetheless, her nomination languished on the floor until Jan. 3 when her nomination expired, a result attributable to GOP obstruction in refusing to grant her a final debate and vote. Because Gallagher is an experienced, mainstream nominee and the District of Maryland requires all of its judges, President Trump must swiftly renominate and the Senate should promptly confirm the jurist.... Cardin and Sen. Chris Van Hollen, who was elected in November after Mikulski’s retirement, should urge Trump to swiftly nominate Gallagher again, just as the chief executive recently renominated Judge David Nye and Dean Scott Palk, well qualified, mainstream Obama nominees who had enjoyed 2016 panel approval similar to Gallagher.
Casey reportedly blocking Bibas nomination [update: but apparently he isn’t] (CA3blog, 07/11/17)
Matthew Stiegler: Paul Engelkemier reports at PoliticsPA that PA Senator Bob Casey is withholding his blue slip on the Third Circuit nomination of Stephanos Bibas. ... UPDATE: Oops: PoliticsPA has now updated its post: "Sources tell PoliticsPA that Republicans have misrepresented Casey’s actions. They say that Casey only received the paperwork for his blue slip about Bibas’ nomination this morning." ... If the spokesman’s facts are correct, then the GOP was trying to pin the blame on Casey for a hold-up caused by the Trump administration itself!
Blue Slips Become Issue in Senate (Politics PA, 07/11/17)
Paul Engelkemier: Update: Sources tell PoliticsPA that Republicans have misrepresented Casey’s actions. They say that Casey only received the paperwork for his blue slip about Bibas’ nomination this morning.
The Pennsylvania Democratic Party responded to the claims from Republicans.
“Before launching these absurd attacks, Republicans should get their basic facts straight. Mr. Bibas’ paperwork was received by the Senate Judiciary Committee late last night and only forwarded on to Senator Casey’s office this morning — around the same the GOP were drafting their statements claiming obstruction. Senator Casey has a strong bipartisan record of working to confirm judicial nominees from both Republican and Democratic presidents and will continue to evaluate candidates as the administration puts their names forward,” Pennsylvania Democratic Party spokesman Max Steele said in an email.
Hallelujah News, Judiciary Department (Daily Kos, 07/11/17)
Meteor Blades: U.S. Circuit Judge Janice Rogers Brown of the United States Court of Appeals for the District of Columbia Circuit will retire from the bench at the end of August. The libertarian-leaning Brown appointed by President George W. Bush in 2005 has a record of challenging 80-plus years of U.S. economic policy, having called the New Deal as a win for “socialist revolution.” Not the only federal judge appointed in the 21st Century to hold such views, of course, but Brown has been one of the most vocal in her judicial opinions, injecting a tone of disdain in her written judgments.
One of the Biggest Reasons Republicans Stick by Trump: They blocked Obama’s court nominees for years. Now they’re filling those seats, starting a huge shift rightward for the judiciary. (Bloomberg News, 07/10/17)
By Paul Barrett and David Ingold: this congressional pocket veto of Garland, a 64-year-old moderate and chief of the influential U.S. Court of Appeals in Washington, was simply the most public manifestation of a longer-term strategy. After gaining control of the Senate in 2015, Republicans made it their mission to slow-walk Obama’s nominations for the lower courts. This effort contributed to the relatively large backlog of 107 vacancies on trial and intermediate-appellate courts that Trump inherited.... Two White House choices that have infuriated Democrats and could make moderate Republicans queasy are John Bush and Damien Schiff. Both men, who are scheduled for a vote before the Senate Judiciary Committee as soon as next week, have come under fire for hard-right views they’ve expressed as prolific bloggers.
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.
Urge Bush to withdraw | Letter (Courier-Journal [KY] , 07/07/17)
Ed Galloway: Louisville attorney, John K. Bush, has been nominated to become a judge on the U.S. 6th U.S. Circuit Court of Appeals. ... I was distressed to learn what Bush's past blog posts reveal about his opinions and prejudices. The inflammatory positions he has taken in social media call his judgment into question and disqualify him from the federal bench. It appears to me that as a judge, he would be destined to exacerbate the divisions that are roiling our country. I am further disturbed by his transparent and ineffective dissembling before the Senate Judiciary Committee as he now tries to distance himself from his own outrageous positions.
I’m sure that our senators originally approved this nomination, but I sincerely hope that in light of the revelations about Bush’s past, they will advise him to withdraw from the nomination process. Surely we can find a conservative attorney with measured and judicious views to appoint to this court.
Trump Judicial Nominee Lies and Obfuscates (Dispatches from the Culture Wars blog, 07/07/17)
Ed Brayton: After a confirmation hearing, judicial nominees are sent lists of questions by members of the Senate Judiciary Committee, called Questions for Record (QFRs). John Bush, a Trump nominee for a seat on the 6th Circuit Court of Appeals, lied through his teeth on his and refused to answer easy and obvious questions.... No one could possibly believe these denials. There is one and only one reason why he’s refusing to answer these questions about those cases: Because conservative originalism is opposed to the result in all three of them and that is political suicide. You cannot reach the result of those cases, results that are almost universally accepted by society today, while applying any of the conservative originalist theories of interpretation.
Heritage Foundation Discovers Righteous Indignation On Judges (Right Wing Watch, 07/07/17)
Miranda Blue: In an email to supporters today, Heritage Foundation president Ed Feulner castigates the Senate for failing to “do its job” and confirm President Trump’s judicial nominees.... This is all a bit jarring coming from a group that tried to prevent President Obama from placing almost any federal judges on the bench during his entire final year in office, was a leading force behind the blockade of Obama’s nominee to replace Antonin Scalia on the Supreme Court, and spent the election season promising that it would throw up every roadblock possible to any federal judicial nominees Hillary Clinton would make if she were to be elected president, including possibly leaving the Scalia seat vacant for eight more years. Feulner feigns shock that there are currently 120 federal judicial vacancies waiting to be filled—he does not mention that Heritage was among the groups that helped to rack up those vacancies by preventing Obama from filling them.
Op-Ed: Trump’s Supreme Court pick could have negative trickle-down effects (QNS [Queens, NY], 07/06/17)
State Senator James Sanders, Jr.: Since the Senate blocked hundreds of President Obama’s qualified lower court nominees, Republicans now get to pick many of these judges.... Three of them, Kevin Newsom in Alabama, John Bush in Kentucky, and Damien Schiff in the Court of Claims (a national court that hears cases against the government itself), have gone on the record with very rich takes on history. Newsom and Bush say that Roe v Wade is just like Dred Scott. How so? They are both examples of the courts going too far. To quote Bush: “slavery and abortion are the two greatest tragedies in our country.”
Meanwhile, Schiff has gone on the record to compare affirmative action programs at universities to, you guessed it, Dred Scott. He has also criticized schools that teach children that homosexual people have the same sense of right and wrong as heterosexual people.
Trump Nominee Damien Schiff Proves He's Unqualified to be a Judge (People For blog, 07/06/17)
Paul Gordon: Damien Schiff, President Trump’s nominee to the Court of Federal Claims … when he was nominated, it was clear from his long and troubling record that the Judiciary Committee should reject Schiff’s nomination. His recently submitted responses to committee members’ written questions for the record (“QFRs”) provide new reasons that he should not be confirmed. On issue after issue, Schiff rebuffs questions that were prompted by his own writings and statements, including in his confirmation hearing.
THE LONG GAME: Court Stops Trump & Pruitt From Trashing the Planet—for Now: The latest D.C. Circuit Court decision to halt environmental protection rollbacks shows why Trump’s extreme-right judicial nominees are dangerous in the long run. (Daily Beast, 07/06/17)
Jay Michaelson: the important role that the courts have played in slowing Trump’s actions on immigration, security, and environmental regulations points to the importance of the federal judiciary generally—and to the extreme candidates that Trump has nominated so far. Trump has continued to draw heavily from the wishlist prepared by the Heritage Foundation, tacking hard right from the judicial mainstream.... Trump has gone beyond previously accepted limits, nominating to one appellate court John Bush, a birther who used a pseudonym to blog wingnut-like rants about President Obama, and to another Damien Schiff, who called Justice Anthony Kennedy “a judicial prostitute.” (Schiff has apologized.) And because of unprecedented obstructionism in the previous congress, Trump now faces a record-high number of vacancies and expected vacancies in the federal judiciary: 38 percent over the next four years. … voters should care. As we’ve seen in the last six months, the independent judiciary may be democracy’s last line of defense.
Why Trump Nominees John Bush and Damien Schiff Are Unfit to Be Judges (National Women's Law Center blog, 07/06/17)
Amy K. Matsui: Two individuals that President Trump has nominated to the federal bench have said some shocking, intemperate, inappropriate things on blogs (in addition to making problematic statements in legal articles and briefs).
ABA’s Participation in Vetting of Federal Judges Weakened (TimeSolv blog, 07/06/17)
Erika Winston: A long-standing practice within the legal community has been curtailed with a decision from the Trump Administration to end the American Bar Association’s unofficial role in the vetting of judicial candidates for federal judgeships.
Why Trump should renominate Inga Bernstein for the District of Massachusetts (The Hill, 07/05/17)
Carl Tobias: The Senate Judiciary Committee approved Bernstein on a May 2016 voice vote without dissent. However, she languished on the floor all year until her nomination expired on January 3, primarily because Republicans denied her a confirmation debate and vote. Because Ms. Bernstein is a talented, moderate nominee and the District of Massachusetts requires all of its judges, President Donald Trump should renominate her and the Senate must promptly confirm Bernstein…. Bernstein’s re-nomination and confirmation can be achieved easily. The Massachusetts senators must urge President Donald Trump to promptly nominate Bernstein again, just as he recently renominated Judge David Nye and Dean Scott Palk, well qualified, mainstream Obama nominees, who had earned 2016 committee approval like Bernstein.
John K. Bush: Would YOU Hire This Man? (People For blog, 07/05/17)
Paul Gordon: Even before his committee hearing, it was clear that President Trump’s nominee to the Sixth Circuit, John K. Bush, has a deeply disturbing record that shows him to be unfit for the bench. His post-hearing responses to committee members’ written questions for the record (QFRs) make it all the more bizarre that he was even considered, let alone nominated, to become a federal judge. His responses are not just unsatisfactory. They are ludicrous. He responded to the Judiciary Committee with 59 pages of dissembling, evasion, and “alternative facts” spanning a wide range of issues. What follows is just a sample.
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.
Donald Trump and Neil Gorsuch have the right wing thinking big — really big (Slate.com, 07/03/17)
PETER MONTGOMERY AND RIGHT WING WATCH: A primary vehicle for reversing the “great progressive experiment” will be by packing the federal courts with judges committed to a far-right view of the Constitution and laws. Gorsuch was part of Trump’s list of potential justices pre-approved by the Heritage Foundation and the Federalist Society, which has been working for decades to achieve right-wing ideological dominance in the federal judiciary. In 2001, during the first 100 days of the George W. Bush administration, the Federalist Society held a forum on “Rolling Back the New Deal.” While the Obama administration interrupted that effort, a Trump administration and a Republican congressional majority could put it back on track.
Trump’s Ugly Mid-Year Report On Civil Rights (Huffington Post, 07/02/17)
Earl Ofari Hutchinson: The SCOTUS is only the start of Trump’s civil rights remake of the courts. With little fanfare, he named nearly a dozen judges to fill vacancies on lower courts in several judicial districts. His picks read like a Whos Who from the ultra-conservative Heritage Foundation. They are conservative, with deep ties to the GOP, and corporations. They have shown no evidence of any legal sympathy to civil rights law and labor protections. There are hundreds more vacancies on the federal judiciary that Trump will try and fill in the months to come. The picks aren’t likely to vary one bit from the template of judges that he deems his ideal; judges that are conservative, pro-corporate, and hostile to labor and civil rights.