Editorials and Opinion
My Turn: Carl Tobias: Trump should renominate McElroy (Providence Journal [RI] , 08/08/17)
"In September 2015, President Barack Obama nominated Mary McElroy, who had been the public defender for Rhode Island since 2012, to fill a vacant judgeship in the federal District of Rhode Island. McElroy was an experienced, moderate nominee whom Democratic Senators Jack Reed and Sheldon Whitehouse strongly supported.
The Senate Judiciary Committee approved McElroy in January 2016 without dissent. Nevertheless, she languished until her nomination expired .... President Donald Trump should swiftly renominate her, and the Senate rapidly confirm her.
The district currently has one vacancy among three active judgeships.... Reed and Whitehouse have asked Trump to promptly nominate McElroy again, just as he recently renominated three other strong, mainstream Obama nominees who had earned committee approval like McElroy."
Confirm Judge Pan for D.C. District Court (Washington Post, 08/02/17)
Carl Tobias: In April 2016, then-President Obama nominated Florence Pan, who has served as a D.C. Superior Court Judge since 2009, for an opening on the D.C. District Court. Judge Pan is an experienced, moderate nominee who enjoyed the powerful support of Del. Eleanor Holmes Norton (D-D.C.). The Judiciary Committee reported Pan in mid-September. However, her nomination languished on the floor until Jan. 3, when the nomination expired because of Republican obstruction in refusing to accord her a confirmation debate and vote. Pan is a highly qualified, mainstream nominee and the D.C. District needs each of its vacancies filled, so President Trump must promptly renominate and the Senate must swiftly approve her.... Norton should urge Trump to promptly nominate Pan, just as he recently renominated Judge David Nye and Dean Scott Palk — well qualified, mainstream Obama nominees who had previously earned committee approval, as did Pan.
Trump’s Real Personnel Victory: More Conservative Judges (New Yorker, 08/02/17)
Jeffrey Toobin: McConnell didn’t just protect a Supreme Court seat for the next President; he basically shut down the entire confirmation process for all of Obama’s federal-judgeship nominees for more than a year. It’s the vacancies that accumulated during this time—more than a hundred of them—that Trump’s team is now working efficiently to fill.... One issue that may determine the extent of Trump’s judicial legacy is the so-called blue slip. According to Senate tradition, no judicial nominee will be approved without the consent (signified by a blue slip) of both of the nominee’s home-state senators. ... When Patrick Leahy, the Vermont Democrat, chaired the committee, early in the Obama Presidency, he scrupulously honored the blue-slip standard.
Column: Renominating judges saves time, promotes bipartisanship (Detroit Free Press [MI] , 08/02/17)
Carl Tobias: The U.S. Senate last month unanimously confirmed Judge David Nye ... whom President Barack Obama had first nominated and Trump renominated. ... Several reasons support Trump’s selective renomination of the other Obama district nominees whose candidacies expired on Jan. 3.
First, this would conserve scarce resources that must be devoted to restarting the nomination process.... Second, renomination can be easily implemented by asking home state senators whether they support the nominees .... Third, there is compelling need to quickly fill the prolonged vacancies in 16% of district judgeships, and renomination is the only way to expeditiously confirm jurists. .... Fourth is fairness. Considerations unrelated to nominees’ qualifications — including the presidential election year, increased politicization and Republican obstruction of the 44 nominees — precluded their full Senate review. ... Finally, renominating Obama nominees would allow Trump to cultivate Democrats, whose cooperation will be important when filling the many vacancies. ... Clear illustrations are three nominees — two excellent Magistrate Judges and a talented litigator — for Florida Middle District emergency vacancies. Sens. Marco Rubio, a Republican, and Bill Nelson, a Democrat, urged Trump to renominate them in March. The three superb, mainstream Western District of Washington nominees are similar. Democratic Sens. Patty Murray and Maria Cantwell reproposed the designees.
Right-Wing Pressure on Democratic Senators on Judges: “Do As We Say, Not As We Do” (People For blog, 07/31/17)
Paul Gordon: this pressure campaign—accusations of slow-walking combined with threats to make “exceptions” to the blue slip rule—can succeed only if Republicans hide two basic and indisputable truths:
1. Republican refusals to agree to hearings by submitting blue slips have been respected 100% of the time—regardless of the reason or lack thereof, regardless of the nominee, regardless of the party of the president or chairman, and regardless of the need to fill the vacancy as soon as possible; and
2. Republicans are demanding that Democrats submit blue slips much earlier for Trump nominees than was the case for Obama nominees.
White House Lawyer Is Top Pick For Open Court Seat, And Controversy Could Follow (National Public Radio, 07/28/17)
Carrie Johnson: it's Katsas' work for President Trump this year that could overtake all that other experience in any Senate hearing.... The administration has had a rough time in the legal arena.... Then, there's the stormy relationship between the White House and the Justice Department, a role typically managed by the White House Counsel's Office. ... Justice Department veterans from previous administrations have blown the whistle over what they said are violations of long-standing policy that's supposed to protect law enforcement independence by barring most people in the White House from inquiring about ongoing investigations.... In a confirmation hearing for a lifetime-tenured judgeship, especially on the D.C. Circuit which is known as a "feeder" court for the U.S. Supreme Court, all of those issues could be fair game, veterans of the judicial nominations process said. Katsas could be asked about his involvement, knowledge and advice on a host of controversies
Trump's Nominees for the Courts Are Horrifying and Dangerous (The Advocate, 07/28/17)
Trudy Ring: Damien Schiff ... whose nomination to the U.S. Court of Federal Claims is still pending. “Rarely has there been a nominee who is so sorely unfit to serve as a judge,” says Alliance for Justice’s online report on Schiff. And a letter by Lambda and other LGBT groups urging the Senate to reject Schiff says he “has gone beyond merely disagreeing with the judicial precedents that serve as the foundation of the LGBT community’s legal security and progress, and has denigrated LGBT people in ways that suggest that he is simply incapable of administering the law with respect to LGBT people without bias or prejudgment.”...he has called Supreme Court Justice Anthony Kennedy “a judicial prostitute, ‘selling’ his vote as it were to four other Justices in exchange for the high that comes from aggrandizement of power and influence, and the blandishments of the fawning media and legal academy.” He has deemed Earth Day “a threat to individual liberty and property rights,”
Nominate Judge Koh to the Ninth Circuit Again (Washington and Lee Law Review, 07/28/17)
Carl Tobias: President Barack Obama nominated United States District Judge Lucy Haeran Koh to a “judicial emergency” vacancy on the United States Court of Appeals for the Ninth Circuit. ... Because Koh is a strong and moderate jurist who received nomination for the appellate court, which experiences critical needs for all of its twenty-nine circuit judges to expeditiously, inexpensively, and equitably resolve appeals, California Democratic Senators Dianne Feinstein and Kamala Harris must champion her renomination and President Donald Trump ought to seriously evaluate nominating the jurist again.
Trump’s Anti-Environment Judicial Nominees Could Lead to Polluted Air and Water (Center for American Progress, 07/27/17)
Billy Corriher: The president has recently nominated two young lawyers—both under 40 years old—with a history of working for groups tied to the Koch brothers and other polluters to 15-year terms on the U.S. Court of Federal Claims.
The first nominee, Damien Schiff, is a lawyer with the Pacific Legal Foundation (PLF), a group that often sues the federal government when the government seeks to enforce environmental laws. Like another recently confirmed judicial nominee, Schiff has a history of writing blog posts that denigrate LGBT people and even Supreme Court justices. A few months ago, he wrote that Earth Day is “a threat to individual liberty and property rights.” Schiff once said that the EPA treats American citizens like “slaves” during an interview on CNN.... The nominations of Schwartz and Schiff are in line with the Trump administration’s deregulatory agenda.... If they are confirmed, Schwartz and Schiff could make it easier for oil companies and other corporations to sue the EPA or other government agencies for compensation when regulations cost them money.
Letter to the Editor: Haywood deserved seat on fed court (Delaware County Daily Times [PA], 07/27/17)
Kadida Kenner, Why Courts Matter – PA: Last month, the Trump administration decided to stay the course and nominate another white man for the 3rd Circuit Court of Appeals seat.... Sen. Pat Toomey 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. ... 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 ... the Third Circuit in Pennsylvania will continue to rank among the worst gender-balanced Circuit Court of Appeals in the nation. There’s still a second opening on the 3rd Circuit - Senators Toomey and Casey should renominate Rebecca Haywood.
Another Voice: Renominate Sweet for federal court (Buffalo News [NY], 07/27/17)
Carl Tobias: On March 15, 2016, President Barack Obama nominated Kathleen Sweet, a longtime Western District of New York legal practitioner to an empty seat on that federal court. She is a very qualified, moderate nominee with the powerful support of New York Democratic Sens. Chuck Schumer and Kirsten Gillibrand. The Senate Judiciary Committee approved Sweet on a voice vote last September with no dissent.
Nonetheless, her nomination expired Jan. 3 because Republican obstruction denied her nomination debate and a vote. Because Sweet is a highly qualified, mainstream nominee and the Western District of New York requires this vacancy to be filled, President Trump must promptly renominate, and the Senate must swiftly confirm, her.... Sens. Schumer and Gillibrand should urge President Trump to promptly nominate Sweet again, just as he recently renominated Judge David Nye and Dean Scott Palk, well-qualified, mainstream Obama nominees who had previously earned committee approval like Sweet.
LGBT Rights Groups Adamantly Oppose Judicial Nominees (Findlaw, 07/25/17)
U.S. Sixth Circuit Blog by William Vogeler: If attorneys John Bush and Damien Schiff were running for office, they might have been well-suited to serve in the Republican-controlled Congress.
Bush has made politically polarizing comments about issues such same sex-marriage, abortion, and women's rights. Schiff has publicly disparaged gays and even said states should be allowed to criminalize consensual sodomy.
But Bush and Schiff are in the running for judicial appointments. ... Schiff has been more transparent in his blogs.
For Schiff, that was a problem. He called Justice Anthony Kennedy, who present for the hearing, a "judicial prostitute."
We can't let Trump pack the court with radicals (The Hill, 07/24/17)
Ilyse Hogue: Gorsuch is not just a conservative justice — he’s an activist justice. ... John K. Bush, Trump’s newly confirmed nominee to the 6th Circuit Court of Appeals ... authored over 400 posts under the pseudonym “G Morris” on a Kentucky political blog. Lo and behold, Bush wasn’t an objective potential jurist seeking to call “balls and strikes,” as Chief Justice Roberts once said. He was an angry, misogynistic ideologue ... Bush’s political ideology, and his ability to infect the law with his beliefs, is precisely why he was nominated in the first place.
Editorial: Maintaining an independent judiciary is critical for democracy (St. Louis Post-Dispatch [MO], 07/23/17)
"Efforts to control that independent branch of government have prompted debate on an obscure Senate rule called the “blue-slip” process. Billionaire industrialist brothers David and Charles Koch, among leaders of the effort, urged supporters at a recent private retreat to work against the rule. The 100-year-old rule keeps judicial nominees from moving forward in Senate confirmation if a home-state senator objects. … The stakes are high. Trump arrived in office with more than 100 vacancies to fill on the federal bench, partly because Senate Republicans blocked many of President Barack Obama’s nominees…. Congressional rules that aim to keep the branches of government operating within the two-party system must be carefully preserved…. Efforts by billionaires to undermine judicial independence threaten our democracy."
Trump Leaving His Mark on Federal Courts (Jost on Justice: Law & Justice Blog, 07/23/17)
Kenneth Jost: Trump picked up a win last week when the Senate confirmed an anti-gay conservative lawyer and intemperate political blogger to the federal appeals court for the four-state circuit that includes my home state, Tennessee. John Bush won confirmation to the Sixth U.S. Circuit Court of Appeals by a strictly party-line vote of 51-47…. the political rants that he posted for years under a pseudonym on a political blog created by his wife mark him as lacking the judicial temperament and sound judgment that are as important, if not more so, than academic and professional credentials…. With political independence in short supply among GOP senators, a president who openly disdains the rule of law is on a path to leaving a lasting, black mark on the federal judiciary.
Letter to the Editor: Male court sustained (Times-Tribune [PA] , 07/23/17)
Kadida Kenner, Why Courts Matter – PA: Last month, the Trump administration decided to stay the course and nominate another white man for a 3rd Circuit Court of Appeals seat.... Sen. Pat Toomey blocked former President Barack Obama’s nominee to replace Judge Rendell, Rebecca Haywood ... Haywood’s confirmation would have been only the 21st federal court confirmation in the last two years of Obama’s presidency. There were 83 confirmed under President Reagan during the same period of his presidency, 72 under President Bill Clinton and 68 under President George W. Bush.... the 3rd Circuit in Pennsylvania will continue to rank among the worst gender-balanced appeals courts in the nation.
There’s still a second opening on the court — Toomey and Sen. Bob Casey should renominate Haywood.
Pa.’s senators must promote gender diversity in federal courts (Pittsburgh Post-Gazette [PA], 07/21/17)
KADIDA KENNER, Why Courts Matter – PA: the Trump administration decided to stay the course and nominate another white man for the 3rd U.S. Circuit Court of Appeals seat .... Sen. Pat Toomey blocked former President Barack Obama’s nominee to replace Judge Rendell for the 3rd Circuit, Rebecca Haywood, when Mr. Toomey refused to submit his home-state blue slip allowing for a judicial hearing for Ms. Haywood. For nearly one year, Ms. Haywood, an African-American and highly qualified assistant U.S. attorney from Western Pennsylvania, waited ... and the 3rd Circuit continues to lack gender diversity and the perspective of an African-American woman on its bench.
For anyone keeping score, Ms. Haywood’s confirmation would have been only the 21st federal court confirmation in Mr. Obama’s last two years of his presidency, compared with Ronald Reagan with 83, Bill Clinton with 72 and George W. Bush with 68 .... There’s still a second opening on the 3rd Circuit, and Sens. Toomey and Bob Casey should renominate Rebecca Haywood.
Letter to the Editor: Republican tactics block gender diversity on bench (Erie Times-News [PA], 07/21/17)
Kadida Kenner, Why Courts Matter — Pennsylvania: Sen. Pat Toomey blocked former President Barack Obama’s nominee to replace 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 one 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. Haywood’s nomination ultimately expired in January, and the 3rd Circuit continues to lack gender diversity and the perspective of an African-American woman on its bench.... I’m sure Toomey will vote the party line and support the current nomination of the new nominee, University of Pennsylvania criminal law professor Stephanos Bibas, to fill the seat that rightfully belongs to Haywood. There’s still a second opening on the 3rd Circuit. Sens. Toomey and Bob Casey should renominate Haywood.
Senate will vote today on right-wing blogger nominated by Trump for court of appeals (NC Policy Watch, 07/20/17)
Rob Schofield: Bush has recorded his extremist views in a blog full of rhetoric so inflammatory as to call into serious question his ability to serve as an impartial judge. ... he blog is full of personal attacks on those with whom he disagrees. He has no particular qualifications for the bench besides his right-wing views.... As Supreme Court expert Ian Millhiser of the Center for American Progress explains in an excellent post, “this is not normal.” What’s more, Bush’s legal views are extreme on an array of issues
No place for bigotry on the bench (Troy Daily News [OH], 07/20/17)
Sen. Sherrod Brown - Contributing Columnist: This week, I took to the Senate Floor to shine a light on the president’s nominee to join the 6th Circuit Court of Appeals, John K. Bush. This man has a clear record of promoting bigotry and discrimination that has no place in our courts, ... We cannot allow the bar to be lowered for what is considered acceptable behavior by members of the federal bench.
Anti-LGBTQ Judicial Nominees: Too Biased for the Bench (Medium, 07/20/17)
Harper Jean Tobin: Unfortunately, Bush is no outlier. President Trump’s pick for a seat in the U.S. Court of Federal Claims, Damien Schiff, has a record that demonstrates, in the words of a letter joined by NCTE and other LGBT advocates, “plain contempt for the rights of LGBT Americans.” Further, Schiff has flat-out denied the legitimacy of Title IX, a critical federal law that guarantees equal treatment for trans students. The shameless bias that Schiff, Bush, and other nominees freely espouse is simply unacceptable for judicial nominees, for our federal bench, and for our entire system of justice.... Another nominee for the U.S. Court of Federal Claims, Stephen S. Schwartz, ... helped craft arguments that federal laws offer no protection to trans people. While a lawyer’s choice of client is not, in itself, generally considered a valid ground for criticizing nominees, Schwartz’s involvement in making far-reaching legal arguments in these high-profile cases should prompt close scrutiny of his own views and possible biases.
The one area where Trump has been wildly successful (Washington Post, 07/20/17)
Ronald A. Klain: while President Trump is incompetent at countless aspects of his job, he is proving wildly successful in one respect: naming youthful conservative nominees to the federal bench in record-setting numbers.... Trump’s picks are astoundingly young.... How conservative are Trump’s picks? Dubbed “polemicists in robes” in a headline on a piece by Slate’s Dahlia Lithwick, Trump’s nominees are strikingly . . . Trumpian. One Trump nominee blogged that Kennedy was a “judicial prostitute” for trying to find a middle ground on the court, and said that he “strongly disagree[d]” with the court’s decision striking down prosecution of gay people under sodomy laws. Another equated the Supreme Court’s decision in Roe v. Wade, upholding a woman’s right to choose to have an abortion, to the court’s 19th-century Dred Scott finding that black people could not be U.S. citizens. Another advocated an Alabama law that denied counsel to death-row inmates.... Republican leaders are threatening to curtail “blue slip” rights that allow senators to block unacceptable home-state nominees; Trump is nominating candidates before they are reviewed by the American Bar Association; Judiciary Committee Republicans are arguing that nominees’ writings, legal representations and public statements are irrelevant to confirmation. Democrats should oppose these changes in the process .... Second, Democrats need to overcome their historic unease about working closely with progressive legal groups.
Oh, Look. Trump's New Judge Compared Abortion to Slavery. (Esquire, 07/20/17)
Charles P. Pierce: The selection of judges has been outsourced to the Federalist Society and to Heritage—in other words, to the cream of the conservative legal intelligentsia. And this, pretty much, is what you get.... This is not judicial temperament. This is a tryout for drive-time talk radio.
Something else for Little Rock to live down (Arkansas Times, 07/20/17)
Arkansas Blog by Max Brantley: Think Progress expects John Bush, a Little Rock native who practices law in Lousiville, to be confirmed as a 6th Circuit Court of Appeals judge in a party line 51-48 vote this afternoon.
The article gives some of the many reasons Bush is unfit for the post — anti-gay, anti-women's rights, probably a birther, anti-press ... One point against him is locally relevant: Bush in Senate hearings disclaimed much knowledge of Brown v. Board of Education. Hey, one of the most important cases in the annals of the country happened before he was born. What's a guy to do? He also disclaimed knowledge of "controversy" caused by Brown. The little ol' school dustup in his hometown of Little Rock occurred before he was born, too. Maybe that wasn't controversy. ... Rep. John Lewis perhaps could inform him of a few other controversies that followed elsewhere over requiring schools to serve white and black children equally. And, I should add, the beat goes on in his very own hometown. Sad!
Senate set to confirm unhinged right-wing blogger to powerful court; The Donald Trump of judges. (Think Progress, 07/20/17)
Ian Millhiser: John Bush is a lawyer who, for many years, wrote for a conservative blog under a pseudonym.... The opposition to Bush’s nomination, which has grown to include every Democrat in the Senate, focuses less on his resume and more on his history of publishing deeply conservative views on a blog run by his wife — as well as similar views offered in various speeches.