Editorials and Opinion
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.
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.
[Editorial] The diversity problem on the Eighth Circuit Court of Appeals (Minneapolis Star Tribune [MN], 05/10/17)
"we share the lament of the Infinity Project about lack of diversity on the Eighth Circuit bench. If confirmed, Stras will be the 63rd judge to serve on the court. All but two have been male; only one has been a person of color. That overrepresentation of white males is a problem for the courts that the Infinity Project was created to expose and solve. A grass-roots advocacy organization founded in Minnesota a decade ago, the project holds that the courts better serve the public when those on the bench bring a range of life experiences and are widely representative of society.... Three of the 10 judicial nominees Trump advanced Monday are women. We hope that means he’s not oblivious to the Infinity Project’s concerns, and that he will strive for more diversity on the Eighth Circuit bench with future nominations."
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 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 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
Fill judicial vacancies [Letter to the Editor] (Pittsburgh Tribune-Review [PA] , 05/03/17)
Kadida Kenner, Why Courts Matter-Pennsylvania: vacancies on our federal courts leads to large caseloads for sitting judges, which impedes the judicial process, and denies Pennsylvanians access to justice.
A district court seat in Erie has been vacant for nearly four years, although the Senate Judiciary Committee had unanimously approved nominee Susan Baxter to advance to a full Senate vote in 2015. Baxter's nomination languished for nearly a year on the Senate floor, and eventually expired.
Now is the time for Sens. Bob Casey and Pat Toomey to continue their highly touted bipartisan relationship as it relates to filling Pennsylvania's federal court seats.
Both senators must ensure the Trump administration renominates their agreed-upon nominees, including Pennsylvania Judges Susan Baxter, Robert Colville, Marilyn Horan and John M. Younge.
If Toomey and Casey want to work effectively on behalf of their constituents, they'll ensure the Trump administration moves quickly to fill these seats with the consensus nominees.
Federal court seats remain open (Bucks County Courier Times [PA], 05/02/17)
Letter to the Editor by Kadida Kenner, Why Courts Matter-PA: Having vacancies on our federal courts leads to large caseloads for sitting judges, which impedes the judicial process and denies Pennsylvanians access to justice. A district court seat in Erie has been vacant for nearly four years, although the Senate Judiciary Committee unanimously approved nominee Susan Baxter, a United States magistrate judge from the Western District of Pennsylvania, to advance to a full Senate vote in 2015. ... Now is the time for our home state senators, Bob Casey and Pat Toomey, to continue their highly touted bipartisan relationship as it relates to filling Pennsylvania's federal court seats. Both senators must ensure the Trump administration renominates their agreed-upon nominees, including Pennsylvania Judges Susan Baxter, Robert Colville, Marilyn Horan and John M. Younge. If Sens. Toomey and Casey want to work effectively on behalf of their constituents, they'll ensure the Trump administration moves quickly to fill Pennsylvania's vacant federal judgeships with the consensus nominees, which they've already agreed on.
The White House’s Threats to First Amendment Protections Remind Us that Courts Matter (People For blog, 05/02/17)
Paul Gordon: Our federal court system has protected freedom of speech and freedom of the press in decisions such as Sullivan. That system is made up of hundreds of federal judges serving on district courts, circuit courts, and the Supreme Court. Who they are has always mattered, but perhaps never more than now.
Trump has over 100 federal court vacancies to fill, and rumors are flying that Justice Kennedy may step down.
The fate of our democracy may very well depend on who fills those vacancies.
Casey, Toomey should push to renominate judges (Erie Times-News [PA], 05/02/17)
Kadida Kenner, Why Courts Matter, Letter to the Editor: In Pennsylvania, there are nine open federal courts seats, two of which are on the 3rd Circuit Court of Appeals.
Having vacancies on our federal courts leads to large caseloads for sitting judges, which impedes the judicial process and denies Pennsylvanians access to justice. A district court seat in Erie has been vacant for nearly four years although the Senate Judiciary Committee had unanimously approved nominee Susan Paradise Baxter, a United States magistrate judge from the Western District of Pennsylvania to advance to a full Senate vote in 2015. Baxter’s nomination languished for nearly a year on the Senate floor, and eventually expired.
Now is the time for our home-state senators, Bob Casey and Pat Toomey, to continue their highly touted bipartisan relationship as it relates to filling Pennsylvania’s federal court seats. Both senators must ensure the Trump administration renominates their agreed-upon nominees, Pennsylvania Judges Baxter, Robert Colville, Marilyn Horan and John M. Younge.
Why Trump should fill all of Texas' judicial vacancies with women (Dallas Morning News, 05/01/17)
Commentary by Amanda Sharp Hinson, former aide to Sen. Cornyn: Trump will rely on Senators John Cornyn and Ted Cruz, in consultation with the state's bipartisan Federal Judicial Evaluation Committee, to recruit, vet and propose Texans suitable for lifetime appointment to the federal courts.
They should choose women, so that justice is dispensed from a bench that looks more like the population of lawyers and litigants it serves. ... in Texas today, women hold only 23 percent of federal district court seats. Even if Trump filled every single vacancy in Texas district courts with a woman, women would still make up only 44 percent of active Texas federal judges.
Choose women to demonstrate that the legal profession is not an ossified "old boys" club .... There is no better way to fuel the opposition's fire than to insult half of the population — and half of the party — by not proactively correcting the gender imbalance in the courts.
Trump’s first lower court nominee would nuke campaign finance laws: Anyone want to buy an election? (Think Progress, 04/28/17)
Ian Millhiser: Thapar authored an opinion suggesting that he would eviscerate what remains of the law limiting the influence of money on politics. Indeed, Thapar’s decision in Winter v. Wolnitzek reached so far beyond existing precedent that much of it was reversed by a panel that included two conservative George W. Bush-appointees. [His] analysis isn’t just wrong — it is obviously wrong under well-established Supreme Court precedent.... Thapar’s logic is that speech is identical to spending for purposes of the First Amendment. But if that were true, individual contribution limits would be unconstitutional.
My Trump agenda for Day 101: ... federal judge vacancies (Idaho Statesman, 04/28/17)
Robert Ehlert, Idaho Statesman's editorial page editor, column: Idaho federal judge ‘emergency’ On April 5, 2016, President Barack Obama nominated 6th District Judge David Nye to serve on the federal court in Idaho. That was over a year ago .... Under the supportive sponsorship of Crapo and Risch, Nye was later approved by the Senate Judiciary Committee, on which Crapo serves. But neither Nye nor any of the other 127 federal vacancies got filled by the end of Obama’s term due to partisan squabbling that included Republicans’ refusal to even consider Judge Merrick Garland’s nomination to the Supreme Court. ...Crapo and Risch said Thursday that they had received assurance that Nye would be among the first judges nominated by Trump. ... We still need to see the official nomination, and then see Nye navigate the process to confirmation. Until then, any idea of prompt federal justice in Idaho suffers because Judge B. Lynn Winmill can handle only so many cases.
Many believe Idaho is deserving of a third federal judge position, but that expansion would have to be approved by Congress. Given how long it has taken so far to replace just one judge, I’ll settle for putting Nye to work for now.
Can Trump ‘absolutely’ break up a federal court that’s standing in his way? (Washington Post, 04/28/17)
Amber Phillips: there are ways he can work with Congress to split up a federal court — doing it just might be more trouble than it's worth.... Ask almost any lawmaker in Washington, and they'll say an independent judiciary is good for democracy. And they'll also say that politicians who tried to exert their power over the courts are bad for democracy. ... Today, it's difficult to see how Congress — which is controlled by Republicans — convinces Americans they are breaking up this court for any reason other than to help create a more favorable judicial landscape for the president.
Toomey, Casey must work to fill vacant judgeships | Letter (Express-Times [PA], 04/28/17)
Kadida Kenner, Why Courts Matter/PA: In Pennsylvania, there are nine open federal courts seats, two on the 3rd Circuit Court of Appeals.
Vacancies on our federal courts leads to large caseloads for sitting judges, which impedes the judicial process and denies Pennsylvanians access to justice. A district court seat in Erie has been vacant for nearly four years although the Senate Judiciary Committee had unanimously approved nominee Susan Baxter, a federal magistrate judge from the Western District of Pennsylvania .... Now is the time for Sens. Bob Casey and Pat Toomey to continue their highly touted bipartisan relationship as it relates to filling Pennsylvania's federal court seats. They must ensure the Trump administration renominates their agreed-upon nominees including Pennsylvania judges, Baxter, Robert Colville, Marilyn Horan and John M. Younge.
If Toomey and Casey want to work effectively on behalf of their constituents, they'll ensure the Trump administration moves quickly to fill Pennsylvania's vacant federal judgeships with the consensus nominees, of which they already agreed upon.
Q&A Has the 9th Circuit gone 'bananas'? And can Trump break it up? (Los Angeles Times, 04/27/17)
Maura Dolan: Judge Alex Kozinski, a Republican with libertarian views appointed by President Reagan, has been quoted as saying, “You’d have to believe in the tooth fairy to say this has nothing to do with politics.”
Ninth Circuit critics believe that creating a separate circuit of the most conservative Western states would result in more conservative rulings.... A commission created by Congress to study a breakup recommended against it.
A majority of 9th Circuit judges, including conservative Republicans, believe a breakup would be a bad idea, according to the court’s internal polling of judges. Democrats, though the minority party, also could potentially block any such move.
Trump Vetting Extremist Judges to Fill Record Number of Empty Seats (Center for American Progress, 04/27/17)
Billy Corriher: President Donald Trump has a chance to nominate 127 federal judges to seats that are now empty. This is an astounding number of vacancies—amounting to one-seventh of the total federal judiciary and more than twice the number of vacancies that President Barack Obama inherited. The White House is vetting nominees for courts around the country, including extremist nominees from Texas for the 5th U.S. Circuit Court of Appeals, which has four vacant seats.... The administration’s current crop of nominees suggests that Trump will nominate pro-corporate judges who will consistently rule against American workers and the environment.
If Florida can do it, why not Colorado? (Huffington Post, 04/27/17)
Peg Perl, Colorado Ethics Watch: Florida U.S. Senators Marco Rubio (R) & Bill Nelson (D) came together and made a bipartisan appeal to the White House as it embarks on filling over 120 judicial vacancies on the lower federal courts. Dozens of President Obama’s nominations for these lower courts expired when the new Congress started this January, but many of them were the result of bipartisan selection committee processes and joint recommendation lists from home state Senators to the White House.... Senators Rubio and Nelson have asked the White House not to reinvent the wheel and start over, but to just re-nominate these qualified bipartisan nominees for Senate confirmation in the new Congress.... In 2016, Regina Rodriguez was nominated by the White House after both Senators recommended her from parallel bipartisan selection committee processes. Both Senators Bennet and Gardner enthusiastically supported her nomination and committed to working to push for a speedy confirmation given the backlog of cases in Colorado’s federal court. ...Colorado would be right to look to Florida’s bipartisan delegation as a model for handling this process and together urge the White House to re-nominate Ms. Rodriguez
Trump Can't Win His Battle Against the Judges: Try as he might to change the rules, his protests only fuel the fire (Slate.com, 04/27/17)
Dahlia Lithwick: The president, as is his wont, apparently decided it’s pointless to threaten and undermine an individual jurist when he could go after an entire federal appellate court. So off he went on a boilerplate Twitter rant in which he wrongly blamed the 9th U.S. Circuit Court of Appeals for his loss at the trial court level; wrongly characterized that appellate court’s reversal record; and wrongly faulted a city and county in California for “judge shopping” (not an actual legal term) for opting to file in the jurisdiction in which they exist .... No matter what you do to the 9th Circuit, California will still be California. And Trump’s fury at the 9th Circuit ignores the fact that he has also been thwarted by federal judges on courts in various other jurisdictions, including the 2nd and 4th Circuits, where thinking jurists also roam free.... he pledged to revisit plans to break up the 9th Circuit, presumably because he thinks breaking up a federal circuit court will magically change his badly drafted executive orders into legally sound ones: ... when President Trump and his administration attack the judicial branch with authoritarian threats to break up the federal appeals court that has nothing to do with the ruling he disputes or insults individual “unelected” federal judges based on race or geographic region, sane judges, regardless of their personal politics, will recoil. They will feel, as Neil Gorsuch once put it, demoralized and disheartened by the president’s contempt.
Jeff Sessions crossed the line when he bashed a federal judge (San Diego Union-Tribune [CA] , 04/27/17)
Glenn C. Smith: It was bad enough when candidate Donald Trump gratuitously questioned the impartiality of Gonzalo Curiel, the San Diego federal judge hearing the Trump University lawsuit. (Trump said that the judge’s ethnic heritage would make him biased.)
It was even worse when President Trump accused the federal judges temporarily halting his travel bans of purely political motivations and limited intelligence. But it was especially disheartening last week to hear random disrespect for a federal judge from the mouth of Attorney General Jeff Sessions — who is, after all, the nation’s highest-ranking official with day-to-day responsibility for the rule of law. Commenting about the temporary restraining order U.S. District Judge Derrick Watson issued in Hawaii against the administration’s second travel ban, Sessions found it galling to be subject to a nationwide ban issued by “a judge sitting on an island in the Pacific.” The remark was eerily reminiscent of President Trump’s earlier dismissive tweet that the U.S. district judge who stopped his first travel ban was a “so-called judge.”
Don't believe Trump's tweet about 9th Circuit Court's 'terrible record (San Francisco Chronicle [CA], 04/26/17)
Mike Moffitt: Can that be right, 80 percent of Ninth Circuit rulings are overturned by the Supreme Court? No. Absolutely false ... about a 10th of 1 percent of the 60,467 cases terminated on average each year by federal court of appeals are reviewed by the Supreme Court .... But doing the big-picture math would disrupt the perception cultivated by the administration (and some Republicans) that the Ninth Circuit is an out-of-control "rogue" court. ... the Ninth Circuit Court is not the most overturned circuit court in the nation, or even the second most.
[Sens.] Klobuchar & Hirono Probe Thapar on Money in Politics (People For blog, 04/26/17)
Paul Gordon: One of the several concerns that have been raised about Sixth Circuit nominee Amul Thapar centers on a case in which he used a severely flawed First Amendment analysis to strike down Kentucky’s ban on state judicial candidates contributing money to political organizations or candidates. In Winter v. Wolnitzek, Thapar applied strict scrutiny (the highest possible standard) to the prohibition, even though the Supreme Court has stated repeatedly that restrictions on campaign contributions are subject to a lesser level of scrutiny. (His opinion was reversed by a unanimous three-judge circuit panel.)... Sens. Klobuchar and Hirono are to be commended for asking Judge Thapar about this important issue. Unfortunately, his response is less deserving of commendation.
A Frustrated and Confused Trump Wants to Bust Up the 9th Circuit (New York Magazine, 04/26/17)
Ed Kilgore: William Orrick, would still be a federal judge no matter which court of appeals had jurisdiction over appeals from his rulings. And so long as Trump keeps issuing orders that affect California, California judges will have the ability to grant Californians relief when appropriate .... In any event, splitting up the Ninth Circuit ain’t happening so long as Democrats have the 41 senators needed to filibuster such a plan in the Senate.
Trump, lower court nominees need American Bar Association review (The Hill, 04/25/17)
Mike Zubrensky: The Trump administration recently announced that it will not permit the nonpartisan American Bar Association to play its traditional role of evaluating judicial candidates before they are nominated. This approach, also taken by the George W. Bush administration, is flawed and unfortunate. It is also ironic, given the Trump White House’s boast about the high ABA rating of its Supreme Court nominee, Neil Gorsuch.
I worked on judicial nominations as both a Senate Judiciary Committee counsel and a Justice Department official in the Obama administration, and I saw firsthand the value that the ABA brings to our judicial nomination process.... Because the ABA’s review process is independent and confidential, it receives candid feedback that elected officials and their staffs might not obtain through their own vetting procedures. The White House and senators can save the American people from unqualified judges — and themselves from embarrassment — if nomination decisions are made only after the ABA review is complete.... While the vast majority of Bush judges received a passing grade, seven were rated Not Qualified. But that information didn’t come out until four to six weeks after the nominations were made — the length of time it takes the ABA to conduct its review. By then, the White House and home-state senators were already invested in the nomination, making it politically difficult to withdraw them.
As a result, the Senate confirmed four of the seven Bush judges rated Not Qualified. ... By contrast, President Obama didn’t nominate a single person rated as Not Qualified because he let the ABA conduct its traditional pre-nomination review to screen out such candidates.
Deep Concerns Regarding Thapar Nomination for 6th Circuit (People For blog, 04/25/17)
Marge Baker: People For the American Way sent the following letter to Senate Judiciary Committee members to express our deep concerns regarding the nomination of federal district court judge Amul Thapar to the Sixth Circuit Court of Appeals.
Judge Kozinski’s Advice To President Trump, Courtesy Of ’60 Minutes’ (Above the Law, 04/24/17)
David Lat: Here are some highlights from the segment on [Ninth Circuit] Judge Kozinski, who was interviewed by correspondent Lesley Stahl.... On proposals to split the Ninth Circuit
Alex Kozinski: The 9th Circuit can’t be split, and won’t be split. It’s a terrible idea.
Lesley Stahl: Why is it a terrible idea? The president himself has come after the Circuit saying that 80 percent of your decisions are overturned by the Supreme Court.
Alex Kozinski: Generally when the Supreme Court takes cases they take ‘em to overturn. They overturn something like 70 or 80 percent of all cases that they take. So, we are, right there, sort of in the middle.
Judge Kozinski’s point is well taken. The Ninth Circuit might be above average in terms of its reversal rate at SCOTUS, but it’s not the most reversed court in the country (although note that statistics will vary depending on the period selected).
And also, in fairness to Judge Kozinski, he’s often one of the conservative voices criticizing the overreaching liberal decisions that fare poorly at the Supreme Court.