Editorials and Opinion
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.
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.
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.
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.
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.
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.
Jeff Sessions is rolling back basic rights (Chicago Sun Times, 04/24/17)
Jesse Jackson, Op-Ed: Sessions has set out with a vengeance to transform the Department of Justice into a Department of Injustice. ... He expressed amazement that a “judge sitting on an island in the Pacific” could overturn the president’s order. That judge was a federal district court justice in the state of Hawaii, part of the union for 58 years.
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.
Sessions’s aloha-baiting could bring attention to the real problem (Washington Post, 04/24/17)
E.J. Dionne Jr.: here is Sessions’s islophobic sentence: “I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power.”
The obvious problem in Sessions’s comments ... is that Hawaii is a state like every other .... There is also the Trump administration habit of trying to discredit any judge who rules against it, the stuff of autocratic regimes. Members of the executive branch have every right to criticize and appeal lower-court decisions, but what Sessions suggested is that Derrick Watson, the federal judge in question, somehow lost his right to rule because of where his court is located.
After years of obstructing judges, Republicans anxious to pack the courts with extremists (Daily Kos, 04/24/17)
Joan McCarter: Senate Republicans used every trick in the parliamentary playbook—and invented a few new ones—to keep President Barack Obama from appointing federal judges. ... the lion's share of the blame for the judicial crisis across the country rests on Mitch McConnell and crew. That's all changed, though, with popular vote loser Donald Trump in office. Here's their chance to pack the courts with ideologues, in the mold of new Supreme Court associate justice Neil Gorsuch.
How about nixing double-standard on Trump, Obama? (Northwest Arkansas Democrat Gazette, 04/24/17)
Letter to the Editor, Kyle Johnson: So, Mr. Keane thinks it's "way past time for the Democrats and the people to put aside their differences and unite for the betterment of our country." That would have been so nice if Mitch McConnell would have done that very thing when President Obama nominated Justice Merrick Garland to the Supreme Court and Mitch McConnell and the Senate Republicans had simply done their jobs and confirmed him. Justice Garland was no less qualified than Justice Gorsuch. But the Republicans simply wanted to continue to obstruct. Finally, Republicans went "nuclear" to just to get their way.
Why Jefferson Beauregard Sessions III Is Unfit to Serve as Attorney General (Huffington Post, 04/23/17)
Bill Blum, Contributor: Further evidence that Sessions has no business serving as our top law enforcement official emerged last week, when he took an intemperate swipe at Hawaii-based U.S. District Court Judge Derrick Kahala Watson during an interview with ultraconservative radio talk show host Mark Levin. Sessions was livid with Watson—who is one of only two active federal judges of indigenous heritage—for issuing a nationwide injunction blocking enforcement of President Trump’s second Muslim travel ban.
Editorial: Expect new fear mongering as gun lobby works to prop up sales (St. Louis Post-Dispatch [MO], 04/23/17)
"Get ready for a new onslaught as the gun industry zeroes in on its next whipping boy: the federal courts system. During the Obama administration, Senate Republicans moved at a deliberate snail’s pace to fill the growing list of federal court vacancies. Obama inherited 54 vacancies when he assumed office in 2009. Today, more than 100 vacancies exist, lending Trump enormous potential power to reshape the federal bench.... The Second Amendment Foundation recently launched a “Black Robes Matter” campaign to alert members about the high stakes in Trump’s court appointments.
“It is estimated that President Trump will appoint 38 percent of all judges on the federal bench. … We must make sure that he nominates only people that will respect, preserve and expand our Second Amendment rights,” foundation founder Alan M. Gottlieb wrote to members this month.
Speaking after Trump’s election, NRA chief executive Wayne LaPierre warned, “More than 300 Obama-appointed anti-gun judges present an infection for which there is no cure, other than time and vigilance.”... Lobbyists’ thinly veiled attempt to stoke public fear is little more than a cynical marketing ploy to boost sagging sales by creating controversy where none exists."
Trump hasn’t turned a corner (Washington Post, 04/23/17)
Jennifer Rubin, Right Turn column: His hapless Attorney General Jeff Sessions insulted the federal judge (“sitting on an island in the Pacific“) who enjoined Trump’s unconstitutional travel ban.
[Editorial] Neil Gorsuch and the State’s Power to Kill (New York Times, 04/21/17)
"In short, the first significant decision by Justice Gorsuch, who was sworn in to office less than two weeks ago, was the most consequential any justice can make — to approve a man’s killing by the state.
That man, like so many others condemned to die around the country, was a walking catalog of reasons the American death penalty is a travesty. Evidence that Mr. Lee was intellectually disabled and suffered from fetal alcohol syndrome was never introduced into court, mainly because he had egregiously bad representation.... That 4-to-4 split effectively gave the deciding vote over Mr. Lee’s life to Justice Gorsuch, sitting in a seat that by all rights should be occupied not by him but by President Barack Obama’s doomed nominee, Merrick Garland.
During his confirmation hearings, Justice Gorsuch talked a lot about his respect for the rule of law, and the importance of sticking to the plain text of the Constitution and of statutes. But he didn’t have to rewrite the Eighth Amendment to see, as Justice Breyer did, that Mr. Lee’s case exemplified “how the arbitrary nature of the death penalty system, as presently administered, runs contrary to the very purpose of a ‘rule of law.’ ”
Neil Gorsuch held the power of life and death in his hands Thursday night. His choice led to Ledell Lee’s execution, and gave the nation an early, and troubling, look into the mind-set of the high court’s newest member.