Editorials and Opinion
Why the Trump-Franken fight over a Minnesota judge is a bad omen for our political system (MinnPost [MN], 09/06/17)
Eric Black: the Republican leadership of the Senate, claiming a bogus historical precedent that did not exist, refused to even hold a hearing on the Garland nomination.... Rep. Erik Paulsen, a loyal Republican, wasted an entire Star Tribune commentary attacking his Senate colleagues for holding up the Stras nomination without mentioning the Garland case."
Thoughts on the Sept. 6th Judiciary Committee Hearing (Vetting Room, 09/06/17)
Harsh Voruganti: Two Circuit Court Nominees Will Not be The Norm – Chairman Chuck Grassley (R-IA) started the day by recognizing that the hearing will be the second with multiple circuit court nominees, a fact that had drawn liberal criticism. Grassley’s statement acknowledged that the hearing was “unusual” and suggested that he would go back to having only one circuit court nominee per hearing.... Amy Barrett Will Be Strongly Opposed ... in an exchange with Sen. Al Franken (D-MN), Barrett acknowledged that she had accepted $4200 from the controversial anti-LGBTQ group Alliance Defending Freedom (ADF). When Franken pointed out that ADF held many extreme views, including supporting the sterilization of transgender persons, and had been designated as a hate group by the Southern Poverty Law Center (SPLC), Barrett inexplicably tried to defend ADF. ... Franken ... shone in his exchange with Barrett, honing in on inconsistencies in her answers
Grassley should rethink scheduling of Judiciary Committee hearing (Des Moines Register [IA], 09/05/17)
Prof. Carl Tobias: The Chair has also resisted substantial pressure from the White House, Senate Majority Leader Mitch McConnell (R-Ky.), GOP colleagues and conservative pundits to change the blue-slip policy that Sen. Patrick Leahy (D-Vt.) and Grassley followed as Chairs throughout President Barack Obama’s tenure. Leahy and Grassley would allow hearings only for circuit and district nominees when both senators from the states where vacancies arose returned blue slips. The Chair has maintained that practice by patiently and cautiously allowing home state senators, especially Democrats, adequate time to comprehensively assess nominees. Indeed, Grassley vowed to retain this approach in a 2015 Des Moines Register opinion piece and in a 2016 post-election statement to the Wall Street Journal, while Leahy recently remarked that Grassley said “he was going to follow the same procedures as chairman [and] had never broken his word” to Leahy over three decades.... Sen. Grassley should not jeopardize his fair and efficient Judiciary Committee stewardship or his cordial relationship with Democrats by conducting a hearing that includes too many nominees for the committee to assess effectively.
Franken announces attempt to block Trump judicial nominee (Daily Kos, 09/05/17)
Joan McCarter: Sen. Al Franken (D-MN) will not give his approval for Donald Trump's pick of Minnesota state Supreme Court Justice David Stras for the 8th Circuit Court. The Senate has traditionally allowed home state senators to approve or oppose nominees to the judiciary.... Franken's willingness to fight is critical. The rest of his colleagues on the Judiciary need to join him and do everything in their power to resist allowing Trump to remake the judiciary.
Amid tension, Trump and McConnell together on judges (CNN, 09/05/17)
Joan Biskupic: In March 2009, soon after Obama had become president and while Democrats held a majority in the Senate, then-Senate Minority Leader McConnell joined other GOP senators in a letter warning Obama that Republicans would intensely screen his nominees and exercise their home-state interests
In the end, Obama won fewer appeals court confirmations than recent two-term presidents and had to wait longer for Senate approval of the nominees who cleared the process.
Russell Wheeler of the Brookings Institution's Governance Studies Program, who has tracked judicial nominations for decades, said that the median time for Obama appeals court candidates, from nomination to confirmation, was 229 days. During George W. Bush's tenure, the median was 219 days, during Clinton's it was 139 days, and during Reagan's tenure it was 45 days.
These days, McConnell and other Republicans are pushing for swift action on nominees, some wanting to toss out the "blue slip" tradition.
Grassley acknowledged, with some irony, the switch during that May town hall.
"In March of 2009 all of the Republican senators signed a letter to the Obama administration that we were going to use the blue slip," he said. "Now I've got my Republican colleagues ... a lot of them on the right that think we ought to do away with the blue slip."
A Confederacy of Dunces (Shelia Kennedy [IN professor blog], 09/05/17)
"The one area in which he has sent numerous nominees to be confirmed is the Judiciary, and those nominees are terrifying. Two examples:
John Kenneth Bush, Trump’s nominee for the Sixth Circuit ... Damien Schiff is Trump’s nominee for the US Court of Federal Claims. He has called Supreme Court justice Anthony Kennedy a “judicial prostitute” ... When “elitism” is defined as expertise, and people who know what they are doing are for that reason disqualified, ideology and incompetence fill the void."
Racial Diversity on the Federal Bench: Have We Hit the High Water Mark? (Vetting Room, 09/01/17)
Harsh Voruganti: President Trump’s first few batches of judicial nominees have the lowest proportion of “nonwhite” judges since the Kennedy Administration. This portends a dramatic drop in the percentage of minority judges in the federal judiciary.
According to the Congressional Research Service (CRS), as of August 1, President Trump has nominated only one non-white judge to the federal bench: Judge Amul Thapar. (The nominees submitted on August 3d were not analyzed but are also overwhelmingly white). This means that under 4% of Trump’s nominees have been racial minorities. In comparison, 36% of President Obama’s judicial nominees were racial minorities.... Republican presidents in the modern era, including Presidents Reagan, George H.W. Bush, and George W. Bush, all produced a group of judicial nominees more diverse than those of President Trump. In fact, even Presidents Nixon and Ford had a slightly higher percentage of nonwhite nominees than President Trump.
According to CRS, minority judges are seeing the first sustained decline of their numbers from the peak they reached in early 2015. Much of the decline is due to the Republican Senate’s refusal to confirm President Obama’s judicial nominees in the 114th Congress, and cannot be blamed on President Trump. Nevertheless, unless this Administration makes an affirmative commitment to racial diversity, they will oversee a federal bench with far fewer minority judges. ... P.S. Special Thanks to Glenn Sugameli of Judging the Environment for linking me to the CRS data on diversity in judicial nominations.
More than one side can play obstruct game (Mankato Free Press [MN] , 08/29/17)
Byron J. Nordstrom, Letter to the Editor: Minnesota senators. ... have failed thus far to “blue slip” the nomination of David Stras, currently an associate justice of the Minnesota Supreme Court, so that his confirmation can proceed in the U. S. Senate.... Aren’t those crying foul ignoring something? Aren’t their complaints just a bit hypocritical? What happened, for example, to Merrick Garland, President Obama’s nomination to the U. S. Supreme Court? His was just one of many of Obama’s nominations for judgeships and other offices that were never approved.
Didn’t Garland’s nomination sit idled at the will of Senate Majority Leader Mitch McConnell and his colleagues for almost a year so that a Trump nominee (Neil Gorsuch) could win appointment.
Counterpoint: Senators are right to take time with Stras appointment (Minneapolis Star Tribune [MN], 08/28/17)
Prof. Myron Orfield: Klobuchar and Franken are exhibiting appropriate diligence. My own work focuses on civil rights and school integration, and Stras’ previous statements have left me deeply concerned about the impact of his appointment within these areas. Indeed, there is reason to believe that Stras might frustrate ongoing voluntary school integration in Minnesota.
To be clear, I am not concerned that Justice Stras is a conservative or a Republican. This is to be expected under a Republican president, and neither forecloses support for civil rights. Instead, it is his apparent skepticism of important federal civil-rights decisions that troubles me.
Trump’s Judges: A Second Front in the Environmental Rollback (Yale Environment 360, 08/28/17)
Elizabeth Shogren: What most unnerves Ayres and other veteran environmental lawyers and legal experts is the unprecedented opportunity President Trump has to fill the federal judiciary with anti-regulatory, pro-business appointees.... Allison Eid, Trump’s nominee for the 10th Circuit Court of Appeals in Denver, wrote a decision in 2012 for the Colorado Supreme Court that overturned a lower court’s ruling and rejected a community group’s request for a hearing about oil and gas drilling permits near a site where a nuclear bomb was exploded deep underground in 1969. Eid also dissented when the Colorado Supreme Court allowed eminent domain of a corporation’s land to be used for public parks and recreation, yet in a dissent in a separate case she ruled that a pipeline company should be able to use eminent domain for a petroleum pipeline.
Opposed to Barrett court nomination (Palladium-Item [IN] , 08/26/17)
Emily J. O’Brien: Barrett has written about how she feels her personal beliefs are more important than centuries of legal precedent, especially regarding her religion, which she sees as more important to her judicial rulings than the supreme law of the land, the Constitution.
Will Trump’s Enduring Legacy Be a Right-Wing Judiciary? The president is moving at a rapid clip to put ideological allies on the bench. (Moyers & Company, 08/25/17)
Susannah Jacob: Donald Trump chose Michael Brennan to fill an open seat on the 7th Circuit Court of Appeals. In doing so, he broke with a 38-year-old Wisconsin tradition.
For decades, when the 7th Circuit seat meant for a Wisconsin judge opened up, a bipartisan state commission voted on a jointly agreed-upon list of judicial nominees for the president to consider.... Trump went ahead and selected Brennan, a former Milwaukee County judge who is a close ally of Wisconsin’s Republican governor, Scott Walker. In 2011, while serving on a committee to help Walker select state-level judges, Brennan co-authored an op-ed in the Milwaukee Journal Sentinel supporting Republican efforts to block Obama’s nominee to the 7th Circuit Court — a nominee who would have sat in the very seat for which Trump has nominated Brennan.... Republican senators support Trump’s nominees, despite spoken hesitation.
For instance, during his nomination hearings, Sen. John Kennedy (R-LA) found 52-year-old judicial nominee John Bush problematic. “I’ve read your blog. I’m not impressed,” Kennedy told Bush. ... Schiff would oversee environmental and agency lawsuits. In the past, he’s accused the Environmental Protection Agency of treating Americans “as if they were just slaves” and recommended selling Yosemite National Park to the Walt Disney Company because they’d “do a damn better job, I think.”
He also moonlights as a blogger. In one post, he called Associate Justice Anthony Kennedy a “judicial prostitute”
Letter: A dangerous judicial nomination in 7th Circuit (Journal and Courier [IN] , 08/25/17)
Elisabeth Garland-Kuntz: Amy Coney Barrett is nominated for a lifetime appointment to the U.S. Court of Appeals for the 7th Circuit. If our senators approve her nomination, Hoosiers will be at risk.
Readers Write: U.S. Rep. Erik Paulsen and judicial nominations (Minneapolis Star Tribune [MN], 08/25/17)
Brad Engdahl: I was left agape with incredulity by U.S. Rep. Erik Paulsen’s Aug. 25 commentary criticizing Minnesota’s U.S. senators for delaying Justice David Stras’ nomination to the U.S. Court of Appeals for the Eighth Circuit.... I anxiously await his upcoming op-ed piece excoriating the Republican Senate majority for the “greatest” example of partisan game-playing in Washington: the failure to hold a hearing or vote on Merrick Garland’s nomination to the Supreme Court. Garland is a judicial moderate (unlike Stras) and undeniably qualified.
Or maybe Paulsen will pen a paean to the Senate Democratic majority that confirmed 68 of President George W. Bush’s nominees in the last two years of his term and will decry the partisan game-playing and obstructionism of his Republican brethren in the Senate who confirmed only 22 of President Barack Obama’s nominees in the last two years of his term.
Flake’s cynical attempt to break up the 9th Circuit Court of Appeals (Arizona Capitol Times, 08/24/17)
Brett Hartl, Guest Opinion: Sen. Jeff Flake chaired a Senate hearing in Phoenix on August 24 to discuss breaking up the 9th Circuit Court of Appeals into several smaller circuit courts. ... it represents one of the more cynical and undemocratic attacks Flake has waged.... Think of this as judicial gerrymandering. ... the only real winners of splitting the 9th would be special interest polluters, corporate raiders and big business, those who typically benefit from far-right policies that favor corporations over workers’ rights, pollution over public health, and extractive industries over the environment.
The split fits perfectly within Flake’s agenda. He has introduced legislation to weaken the Clean Air Act and gut the Endangered Species Act, and has voted for every regulatory rollback the Republicans have pushed in the first six months of the Trump administration.
Where are the Women: The Alarming Gender Gap Among Trump’s Judges (Vetting Room, 08/23/17)
Harsh Voruganti: only 19% of President Trump’s judicial nominations are women, a lower percentage than the last three presidents ... Only four out of 24 District Court nominations have gone to women.... with the confirmation of these nominees, for the first time since the Eisenhower Administration, the overall number of active female judges would go down.... nominees the Administration have in the works are also, generally, male: ... the federal bench (the elite of the judiciary) is already one third female. As such, producing a pool of nominees that is only 19% female suggests an inability to consider qualified female nominees, rather than a slavish devotion to quality.
Since FDR was in office, every single administration appointed a greater percentage of women to the federal bench than the previous administration of their party. Unless corrective measures are take, the Trump Administration looks set to break that trend.
GOP Efforts to Break Up the Ninth Circuit Would Harm Justice (People For blog, 08/23/17)
Paul Gordon: The GOP’s current scheme to break up the Ninth Circuit is just the latest proposal to game the courts to get more rulings in their favor. Today’s Republican Party has developed expertise in this field. In the past year alone, they refused to even consider President Obama’s nomination of Merrick Garland to the Supreme Court, they blocked confirmation votes on fully-vetted, uncontroversial, non-ideological Obama nominees to circuit and district courts, and voted in lockstep to confirm a far right Sixth Circuit Trump nominee who would not have passed the laugh test under a normal administration.... While conservative politicians try to break up the circuit, high-profile conservative judges have rejected the idea. Reagan nominee Judge Alex Kozinski testified ... On July 27, more than 30 current and former Ninth Circuit judges expressed their opposition to splitting the circuit .... PFAW joined more than 150 local, state, and national organizations in a letter to Grassley and Feinstein opposing efforts to divide the Ninth Circuit.
OP-ED: Ron Johnson’s Hypocrisy on Federal Judgeship: Violates his pledge and adopts policy he once condemned to get conservative appointed judge. (Urban Milwaukee [WI], 08/22/17)
Margo Kirchner: Let’s call U.S. Sen. Ron Johnson’s approval of attorney Michael Brennan’s nomination to the Seventh Circuit Court of Appeals what it is: hypocrisy. Action that Johnson two years ago condemned as repugnant to the best interest of the people of Wisconsin he now considers acceptable because it helps his own party.
Johnson, using his own words, broke his contract with U.S. Sen. Tammy Baldwin, blew up bipartisanship, and chose his party over us.
Together, Johnson, a Republican, and Democratic Baldwin established the Wisconsin Federal Nominating Commission to advise the senators about (among other positions) a judicial appointment for our state’s open seat on the federal appeals court.... In a May 22, 2015 press release still on his website, Johnson said the makeup of the Commission and the five-vote requirement help “ensure that the senators would nominate qualified judges rather than candidates who were on either extreme.... Nevertheless, President Trump, presumably in consultation with Johnson, nominated Brennan for the seat, ignoring the results of the Commission. Brennan received four, not five, votes.
Johnson said soon after Brennan’s nomination that the White House “made a great decision”
Senators Against White Supremacy: Time to Match Rhetoric to Votes on Nominees (Medium, 08/22/17)
Kyle Barry, NAACP LDF Policy Counsel: So far, however, the Republican-controlled Senate has served as a rubber stamp for Trump’s nominees, propelling into power judges and executive officials selected precisely because they will advance Trump’s broader anti-equality and anti-civil rights agenda. ... every Republican Senator (save for the absent John McCain) voted to confirm John Bush to the Sixth Circuit Court of Appeals. Bush’s record includes a surfeit of sexist, homophobic, and racist comments, and support for discriminatory policies. ... There is a nominee to the Court of Federal Claims, Damien Schiff, who once wrote that he would have “objected to an anti-racism curriculum being taught in 1950s Arkansas” because at that time the propriety of racism remained debatable. He also wrote that Supreme Court decisions upholding affirmative action repeated the same mistakes of Plessy v. Ferguson, which established the “separate but equal” doctrine, and Korematsu v. United States, which upheld the internment of Japanese Americans. Two other nominees, Thomas Farr to the Eastern District of North Carolina and Stephen Schwartz, another Court of Federal Claims nominee, defended North Carolina’s package of voting restrictions that the Fourth Circuit found “target[s] African Americans with almost surgical precision.”
Letter: Reject Barrett's nomination as 7th Circuit judge (Journal and Courier [IN] , 08/22/17)
Rachel Amity: I’m alarmed by the nomination of Amy Coney Barrett to the 7th District Court of Appeals. Barrett, a Notre Dame Law professor, has no judicial experience, little courtroom experience and has stated on record that she supports judges putting their personal faith before the Constitution when making rulings.
Law professor: Judge should be renominated for Western District of Oklahoma (Oklahoman, 08/19/17)
Carl Tobias: In December 2015, President Barack Obama nominated Suzanne Mitchell, who has been a U.S. magistrate judge in the Western District of Oklahoma across four years, to a vacancy on that district court. The seat remains unfilled.
Mitchell is an experienced, moderate nominee, whom Oklahoma Republican Sens. Jim Inhofe and James Lankford powerfully supported. The Senate Judiciary Committee approved Mitchell on May 19, 2016, without dissent. However, the jurist languished on the floor until January 2017 mostly because Republicans denied her a final debate and vote. Because Mitchell is a well-qualified, centrist nominee and the district needs all of its openings filled, President Donald Trump should renominate her and the Senate must promptly confirm her.... Inhofe and Lankford should ask President Trump to promptly nominate her again, just as the president recently renominated University of Oklahoma College of Law Dean Scott Palk, another strong, mainstream Obama nominee who had earned committee approval the same day as Mitchell.
What We’re in Danger of Losing (New York Times, 08/17/17)
Linda Greenhouse, Op-Ed: the Senate has devoted time to confirming President Trump’s judicial nominees, some of dubious merit. Last month, on a party-line vote of 51 to 47, the Senate confirmed a Kentucky lawyer, John K. Bush, to the United States Court of Appeals for the Sixth Circuit. Under the pseudonym G. Morris, Judge Bush was a regular blogger on a conservative site called Elephants in the Bluegrass, on which he shared his opinion that Roe v. Wade was one of “the two greatest tragedies in our country”; the other was the Dred Scott case, the decision that denied American citizenship to slaves. The Senate has been slower to approve another Trump nominee, Damien Schiff, a staff lawyer for the right-wing Pacific Legal Foundation nominated to the United States Court of Federal Claims, perhaps because on his own blog he called Justice Anthony M. Kennedy a “judicial prostitute.”
Trump’s judge picks snub Democrats: Democratic senators accuse the administration of not consulting them on lifetime appointments to the bench (Politico, 08/11/17)
Seung Min Kim: President Donald Trump’s judicial nominees are ignoring key Senate Democrats as they vie for lifetime appointments to the bench, according to documents and senators — a break from longstanding practice that diminishes the minority’s power to provide a check against ideologically extreme judges.... University of Pennsylvania law professor Stephanos Bibas met privately with his state's GOP senator, Pat Toomey, before Trump chose him to the 3rd U.S. Circuit Court of Appeals in June — but not with Democratic Sen. Bob Casey, according to a questionnaire submitted by Bibas to the Senate Judiciary Committee about his nomination. Same goes for 7th Circuit nominee Amy Coney Barrett, who interviewed with Sen. Todd Young (R-Ind.) about the appellate vacancy before she was formally nominated but not fellow Indiana Sen. Joe Donnelly, a Democrat, according to her questionnaire.
And in Minnesota, 8th Circuit nominee David Stras met personally with two House Republicans who had recommended him to the White House but with neither of the two senators — Democrats Al Franken and Amy Klobuchar — who actually wield influence over whether Stras’ nomination can advance.... appellate picks from the Obama administration — from Pennsylvania to Utah to Georgia — frequently interviewed with their GOP senators well before being formally nominated, documents show.... In Colorado, 10th Circuit nominee Allison Eid spoke with her former law student, Republican Sen. Cory Gardner, about the Denver-based vacancy, but not with fellow Democratic Sen. Michael Bennet, according to her nominee questionnaire. The White House informed Bennet that her nomination was coming, but that was the extent of any discussions, according to the Democrat’s office.
Larsen, Eid and Stras are particularly notable because all three were on Trump’s short list for Supreme Court nominees during his campaign and would be considered candidates for future vacancies.... One Trump appellate court pick who did reach out to a Democrat was 8th Circuit nominee Ralph Erickson in North Dakota. He spoke with Sen. Heidi Heitkamp’s staff about the vacancy. Heitkamp has returned the blue slip for Erickson ... Brennan didn’t get the requisite support from a state-based nominating commission for judges, Baldwin’s office said.
In Wake Of Trump, Liberals Start To Realize They’ve Had The Judiciary All Wrong: Conservatives seem to ignite more passion for the judicial appointments... progressives are changing that. (Above the Law, 08/11/17)
Joe Patrice: at Netroots Nation ... two big themes stood out that challenged the way left-leaning people have talked about courts for years and, in the process, bridged the gap of those competing visions from last year.
First, the judiciary cannot be a progressive issue in and of itself — all other progressive issues must be framed through the courts. Rather than say “courts are important,” activists need to seize on issues that are already stirring people, and then connect those issues to the courts ... Second, Professor Crenshaw pointed out the elephant in the room: the Federalist Society set out years ago to create a platoon of ideologues to populate the judiciary that would be capable of passing any neutral test of “qualifications.” ... The fact that Democrats are starting to recognize that résumés cannot salvage people deeply unsuited for the bench is a testament to nominees like Judge John Bush of the Sixth Circuit and Damien Schiff — and if you haven’t watched their hearings, you really should treat yourself.
Correcting Misinformation on Blue Slips (People For blog, 08/11/17)
Paul Gordon: without that positive blue slip from both home state senators, the chair has traditionally put the nomination on hold, not scheduling a hearing at all.
Democrat Patrick Leahy adhered strictly to this practice when he chaired the committee during George W. Bush’s last two years and Barack Obama’s first six. So did Republican Chuck Grassley during Obama’s last two years.... As described in a July 31 PFAW edit memo, conservatives are demanding that Democrats submit blue slips much earlier for Trump nominees than was the case for Obama nominees. ... For circuit vacancies where blue slips from GOP senators were ultimately returned for a nominee to fill that vacancy, there was an average of 205 days between the president’s first nomination and the eventual hearing.... President Trump hasn’t even been in office that long! Moreover, that figure actually understates the delay, because it only includes instances where the GOP senators eventually returned their blue slips approving of a hearing. But there were many instances when the blue slips were never returned ... Democrats have always respected GOP senators’ blue slip privileges, and a Democratic president’s nominees have never been confirmed without both blue slips being returned.