Editorials and Opinion
Why Trump should renominate Inga Bernstein for the District of Massachusetts (The Hill, 07/05/17)
Carl Tobias: The Senate Judiciary Committee approved Bernstein on a May 2016 voice vote without dissent. However, she languished on the floor all year until her nomination expired on January 3, primarily because Republicans denied her a confirmation debate and vote. Because Ms. Bernstein is a talented, moderate nominee and the District of Massachusetts requires all of its judges, President Donald Trump should renominate her and the Senate must promptly confirm Bernstein…. Bernstein’s re-nomination and confirmation can be achieved easily. The Massachusetts senators must urge President Donald Trump to promptly nominate Bernstein again, just as he recently renominated Judge David Nye and Dean Scott Palk, well qualified, mainstream Obama nominees, who had earned 2016 committee approval like Bernstein.
The Most Important Question for Trump Judicial Nominees: How much executive authority do they think the president has? (Slate.com, 07/05/17)
Peter M. Shane: Donald Trump’s outsourcing the selection of federal appellate judges, including Supreme Court Justice Neil A. Gorsuch, to the Federalist Society. ... Michigan Supreme Court Justice Joan Larsen, a nominee to the 6thCircuit, wrote approvingly of a President George W. Bush “signing statement” in which Bush indicated he was not necessarily bound by the anti-torture provisions of a 2005 emergency appropriations act…. there are also some nominees who should be deemed utterly disqualified for lack of judicial temperament and explicit hostility to constitutional rights. Damien M. Schiff, a senior attorney at the Pacific Legal Foundation and nominee for the U.S. Court of Federal Claims, has called Justice Anthony Kennedy “a judicial prostitute.” Writing under the pseudonym G. Morris, attorney John K. Bush, a nominee to the U.S. Court of Appeals for the 6thCircuit, has written inflammatory and demeaning anti-LGBTQ blog posts for an ultraconservative website run by his wife.
Donald Trump and Neil Gorsuch have the right wing thinking big — really big (Slate.com, 07/03/17)
PETER MONTGOMERY AND RIGHT WING WATCH: A primary vehicle for reversing the “great progressive experiment” will be by packing the federal courts with judges committed to a far-right view of the Constitution and laws. Gorsuch was part of Trump’s list of potential justices pre-approved by the Heritage Foundation and the Federalist Society, which has been working for decades to achieve right-wing ideological dominance in the federal judiciary. In 2001, during the first 100 days of the George W. Bush administration, the Federalist Society held a forum on “Rolling Back the New Deal.” While the Obama administration interrupted that effort, a Trump administration and a Republican congressional majority could put it back on track.
Trump’s Ugly Mid-Year Report On Civil Rights (Huffington Post, 07/02/17)
Earl Ofari Hutchinson: The SCOTUS is only the start of Trump’s civil rights remake of the courts. With little fanfare, he named nearly a dozen judges to fill vacancies on lower courts in several judicial districts. His picks read like a Whos Who from the ultra-conservative Heritage Foundation. They are conservative, with deep ties to the GOP, and corporations. They have shown no evidence of any legal sympathy to civil rights law and labor protections. There are hundreds more vacancies on the federal judiciary that Trump will try and fill in the months to come. The picks aren’t likely to vary one bit from the template of judges that he deems his ideal; judges that are conservative, pro-corporate, and hostile to labor and civil rights.
[Editorial] Justice Gorsuch Delivers (New York Times, 07/01/17)
"Mitch McConnell ... has already won the biggest fight of all: the theft of a Supreme Court seat from President Obama, the installation of Justice Neil Gorsuch and the preservation of the court’s conservative majority for years to come.... McConnell demolished longstanding Senate tradition and denied a vote to one of the most well-qualified nominees ever: Merrick Garland .... Justice Gorsuch, who was confirmed less than three months ago, has already staked his claim as one of the most conservative members of the court.... The problem is that he’s sitting in the seat that by rights should be occupied by Judge Garland."
How bad are Trump's judges? A Little Rock native illustrates (Arkansas Times, 06/29/17)
Max Brantley: We've written before about Little Rock native John Bush, the Louisville lawyer nominated by Donald Trump for a seat on the 6th U.S. Circuit Court of Appeals. He comes Federalist Society-certified, which is bad enough, but his record as an opinion further illustrates his lack of fitness for the bench, particularly when it comes to a demonstrated animus toward gay people and women's abortion rights. He also professed a lack of knowledge or awareness of any divisiveness spawned by Brown v. Board of Education. Yes, a Little Rock native knew of no fallout from the seminal desegregation ruling that ultimately brought federal troops to the city of his birth.
An article in his hometown Louisville Courier-Journal, where his wife, also a lawyer, contributes a similar right-winged opinion column, illustrates just how bad Bush is.... he says he really didn't mean all the ugly things he's written. Lying then or lying now? It's a bad bet for an enforcer of the Constitution.
Bush's strategy now is to duck questions about his blogging.... He is not alone. Trump has turned his appointments over to the Federalist Society and Heritage Foundation.
Gorsuch proves to be powerful conservative force on high court (The Hill, 06/28/17)
PAUL SCHIFF BERMAN: Elected by a deeply divisive president who had lost the popular vote by a wide margin, his seat was only vacant because Senate Republicans had refused for over a year even to hold hearings on President Obama’s moderate nominee, Merrick Garland. Given those unprecedented circumstances, Gorsuch arguably has an institutional responsibility to be a restrained justice, seeking consensus positions and adhering to mainstream jurisprudential traditions. But three months into what is likely to be many decades on the court, there is little sign of such restraint. Indeed, Justice Gorsuch has already staked out positions in several areas that are more extreme than some of his conservative colleagues on the court.
We weren’t fooled by Gorsuch, and we aren’t fooled by his clones (Medium, 06/28/17)
Lambda Legal Fair Courts Project Fellow Yuvraj Joshi: Supreme Court Justice Neil Gorsuch confirmed this past Monday that he is everything we warned he’d be — opposing equal rights for same-sex couples and eroding the separation between church and state.
Now, Donald Trump is trying to stack the federal courts with far-right Gorsuch clones. Two of them — John K. Bush and Damien Schiff — are soon to be voted on by the Senate.... Like Gorsuch, Bush and Schiff have anti-LGBT records.... We weren’t fooled then, and we aren’t fooled now.
That’s why we are opposing the nominations of John K. Bush and Damien Schiff.
Gorsuch is already pushing the Supreme Court right on religion, guns and gay rights (Los Angeles Times, 06/28/17)
David G. Savage: “There is no such thing as a Republican judge or Democratic judge,” he said more than once. “We just have judges.” But in just his first few weeks on the high court, Justice Gorsuch has shown himself to be a confident conservative activist, urging his colleagues to move the law to the right on religion, gun rights, gay rights and campaign funding.
Trump Should Act on US Senators Nelson and Rubio's Appeal to Fill FL Federal Judgeships (Columbia County Observer [FL], 06/28/17)
Op-Ed by Linda Geller-Schwartz: These two senators have jointly asked the president to renominate three of President Barack Obama’s judicial nominees to Florida’s federal courts who had been vetted and approved by both Senators, but left waiting for hearings (along with Supreme Court nominee Merrick Garland) when their nominations expired in January.
Sens. Nelson and Rubio’s rare show of bipartisanship couldn’t come at a better time for Florida’s federal courts. There are currently seven federal judicial vacancies in Florida and five of them are formally classified as “judicial emergencies,”... Where there are qualified, bipartisan candidates available to be renominated, it makes sense for the president to act quickly.
IT'S NOT JUST HEALTH CARE: SENATE SEEING CREEPING SECRECY, RUSHED HEARINGS (Newsweek, 06/28/17)
EMILY CADEI: the Senate Judiciary Committee pressed forward with a hearing on two high-level Trump judicial nominees before they could be vetted by the American Bar Association, a breach of protocol that has the committee’s senior Democrat, Senator Dianne Feinstein, fuming. “The ABA has been rating judicial nominees based on their professional qualifications since Eisenhower was president,” Feinstein pointed out Wednesday morning at the hearing to consider two U.S. district court judges for the District of Columbia. She protested that senators need to be able to look at these “independent, nonpartisan peer evaluations” before questioning nominees. The White House has already halted the practice of letting the ABA evaluate its judicial picks before they are formally announced, and Feinstein argued that makes it all the more important that the Senate allow the group the time to rate the nominees before they face a grilling on Capitol Hill.
To Sharon McGowan, a senior Justice Department official under President Obama who now works with the gay rights legal defense group Lambda Legal, Republicans’ efforts to duck the ABA ratings is a sign they recognize “that these nominations, if actually given proper vetting, would not actually pass the smell test.”
Another tradition dismissed on nominations (Washington Post, 06/28/17)
Carl Tobias, Letter to the Editor: The June 24 editorial “A smart nomination, but with a snub to D.C.” appropriately criticized President Trump for failing to consult Del. Eleanor Holmes Norton (D-D.C.) before he nominated Jessie K. Liu to be the U.S. attorney for the District of Columbia. This is merely one of many traditions that Mr. Trump has overthrown or ignored. He recently made nominations to fill three vacancies on the U.S. District Court for the District of Columbia without consulting the delegate, as President George W. Bush did for nominations, much less seek her recommendations, as Presidents Bill Clinton and Barack Obama did.
Indeed, the Senate Judiciary Committee scheduled a hearing for two D.C. district court nominees so quickly after they completed paperwork that panel members will lack the nominees’ American Bar Association evaluations and ratings before the hearing. This action contravenes another tradition that the modern Senate has respected. Failure to await the expert ABA report will deprive the committee members of invaluable input .... These traditions protect the constitutional advice and consent responsibility of senators. The president and the Senate should honor them.
A gun-rights dissent signed by Neil Gorsuch proves the NRA got what it paid for (New York Daily News, 06/27/17)
Robyn Thomas and Adam Skaggs: In a dissent from the decision to leave the lower-court opinion in place, Justice Clarence Thomas embraced the extreme vision of the Second Amendment pressed by the gun lobby. And he was joined by Justice Neil Gorsuch, his newest colleague and the nominee for whom the NRA launched a million-dollar ad buy urging his swift confirmation earlier this year.... even the unanimous views of other courts weren't enough to persuade Justices Thomas or Gorsuch.
Op-Ed Gorsuch is the new Scalia, just as Trump promised (Los Angeles Times, 06/27/17)
Richard L. Hasen: The early signs from Justice Neil Gorsuch, who joined the Court in April, show that he will hew to the late Justice Scalia’s brand of jurisprudence, both in his conservatism and his boldness.... In a flurry of orders and opinions issued Monday, Gorsuch went his own way.... there’s little doubt that, like Scalia, conservatives will be able to count on his vote.
Justice Gorsuch Wastes No Time Stirring Up Trouble: His dissent in a gay-rights case reads like a rallying cry for conservative resistance. (Bloomberg News, 06/27/17)
Noah Feldman: it’s clear that Gorsuch wants to establish himself as the new leader of the court’s conservative wing -- fast. No opinion is a better indicator than his dissent from the court’s summary reversal in the Arkansas gay adoption case, Pavan v. Smith.... Gorsuch -- with two more votes on his side -- wants more states to refuse to apply Obergefell according to its simple logic. Instead, Gorsuch is inviting state courts, some of them elected in states where gay marriage remains unpopular, to put up barriers to marriage equality.... Gorsuch isn’t on board with Roberts’s commitment to precedent. He’s rabble-rousing.
Linda Geller-Schwartz: Donald Trump should act on Florida’s bipartisan support for judicial nominees (Florida Politics, 06/27/17)
Guest author: Trump has an opportunity to get something meaningful done quickly and in a bipartisan fashion for Floridians. He can act on an appeal from our two Senators, Bill Nelson and Marco Rubio to fill vacant seats in our federal courts.
These two senators have jointly asked the president to renominate three of President Barack Obama’s judicial nominees to Florida’s federal courts who had been vetted and approved by both Senators, but left waiting for hearings (along with Supreme Court nominee Merrick Garland) when their nominations expired in January.
Sens. Nelson and Rubio’s rare show of bipartisanship couldn’t come at a better time for Florida’s federal courts. There are currently seven federal judicial vacancies in Florida and five of them are formally classified as “judicial emergencies,”
Neil Gorsuch Is Paying Off For Trump So Far (FiveThirtyEight, 06/26/17)
By Oliver Roeder and Harry Enten: Gorsuch, in fact, may settle to the right of Scalia. In each of the 15 cases he’s weighed in on so far, Gorsuch has sided with the court’s single most conservative member, Justice Clarence Thomas. More than that, he’s joined every concurring opinion that Thomas has issued so far. That is, he didn’t just agree with Thomas on the outcomes of the case but also with the reasoning by which those outcomes were reached.... the cases Gorsuch has seen so far have covered a wide menu of topics
To Ram Through Judges, GOP Senators Consider Yielding Power to Trump White House: The Republicans turning the Senate into the House, where the majority rules, are undoing the power of their own institution. (Daily Beast, 06/26/17)
Eleanor Clift: No Obama district or circuit court nominee in eight years even got a hearing before the Judiciary Committee unless both home-state senators returned blue slips saying “yea.”... Senator Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee ... called the elimination of the blue slip “essentially a move to end cooperation between the executive and legislative branch on judicial nominees, allowing nominees to be hand-picked by right-wing groups.”... In Pennsylvania, a vacancy has been open on the Third Circuit since July 2015 after the White House could not reach agreement with Republican Senator Pat Toomey on an acceptable candidate.... A Republican talking point claims that Democrats would do it if they had the chance, prompting Feinstein to point out that Democrats never waived the tradition even when they had the power.... President Obama left 17 district and circuit court nominations on the table, stalled by the refusal of Republican senators to return their blue slips. Of those 17, only one was a white man .... Among the justices now before the Senate, four are vying for seats that Republican senators used blue slips to hold open for an unconscionably long time, years in some cases. Former Alabama Solicitor General Kevin Newsom, who had a hearing before the Senate last week, is up for a seat on the 11th circuit only because Obama’s nominee, Judge Abdul Kallon, never had his blue slip returned by then Republican Senators Jeff Sessions and Richard Shelby. Born in Sierra Leone, Kallon was unanimously confirmed by the U.S. Senate to the District court, and would have been the first African American nominated to the 11th circuit from Alabama.... why the Republicans might be bluffing on blue slips.... Why would any senator give up such undisputed power to this president, or any president for that matter?
3 Things You Don’t Know that Democrats Are Thinking About (Blog for Arizona, 06/25/17)
Larry Bodine: Justice Kennedy may step down on Monday and there is no worse time for this to happen.
It would open the door up for nominees like Robert Bork, racist Kentucky lawyer John Bush (who equated slavery with abortion) or would-be federal judge Damien Schiff, who says anti-bullying laws are “teaching ‘gayness.'”
Editorial, The Post's View Opinion Trump makes a smart nomination — but snubs D.C. in the process (Washington Post, 06/24/17)
"[W]e must lament how the District’s congressional representative has been completely frozen out of the process that settled on Ms. Liu. It was another reminder that D.C. residents, U.S. citizens who pay taxes and go to war for their country, are denied the vital say in their government that is enjoyed by residents of states. The District has no senators who can exercise their prerogative under the “blue slip” process of the Senate Judiciary Committee that requires senators to sign off on nominees for federal district court judges and U.S. attorney offices before they are considered. So previous presidents of both parties carved out a role for Del. Eleanor Holmes Norton (D): Democratic Presidents Bill Clinton and Barack Obama allowed her to recommend officials in the same manner as Democratic senators, and Republican President George W. Bush extended her the courtesy of being consulted, informing her of the candidate before nomination and soliciting her opinion. This time Ms. Norton, her spokesman told us, was informed of the nomination only shortly before it was made public."
The terrifying and terrible prospect of Justice Kennedy retiring (Washington Post, 06/23/17)
Ruth Marcus, Columnist: Kennedy’s retirement would unleash nomination Armageddon ... Justice Kennedy, perhaps it is unfair to pile all this onto your shoulders, but is it really wise to subject an already divided country to even more turbulence?
And to another nomination by this president, with his evident ignorance of the role of the judiciary and disdain for judicial independence?... consider, too, the Trump appellate court nominees who came before the Senate Judiciary Committee earlier this month. One, Kentucky lawyer John Bush, nominated to the 6th Circuit, posted pseudonymous writings on a political blog that touched on President Barack Obama’s Kenyan heritage, referred to then-House Speaker Nancy Pelosi (D-Calif.) as “Mama Pelosi” and suggested that someone should “gag the House speaker.” In another post, Bush described slavery and abortion as “the two greatest tragedies in our country” and said they “relied on similar reasoning and activist justices at the U.S. Supreme Court, first in the Dred Scott decision, and later in Roe.”...Another nominee, Damien Schiff, nominated to the Court of Federal Claims, used a different blog to denounce anti-bullying efforts for “teaching ‘gayness’ in public schools,” and to criticize the court’s ruling in Lawrence v. Texas — that’s your ruling, Justice Kennedy — striking down state laws criminalizing homosexual sodomy. Oh, and also, to observe that “it would seem that Justice Kennedy is (and please excuse the language) 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.”
Justice Kennedy, does the president who chose this man really deserve to name your replacement?
Trump reshapes the lower federal courts with little progressive scrutiny (The Hill, 06/23/17)
Jonathan R. Nash: While the Court of Federal Claims, and nominees to it, generally attract little attention, Trump’s two nominees to the court thus far suggest an effort to increase the likely success of Takings claims against the government and thus to augment the protection of private property rights against government infringement.
Last month, the president nominated Damien Schiff, who has been serving as a lawyer with the Pacific Legal Foundation, a self-described national conservative/libertarian public interest law firm that has argued in favor of a broad understanding of compensable Takings.
The president’s new nominee to the court, Stephen Schwartz, has similar experience.
Before entering private practice, Mr. Schwartz served as counsel to Cause of Action, a public interest law firm that professes its “advoca[cy] for economic freedom and individual opportunity advanced by honest, accountable, and limited government.”
Trump is picking judges to swing the courts hard right for a generation (Daily Kos, 06/22/17)
Laura Clawson: courts have stood in the way of some of Donald Trump’s worst abuses. But he can change that—and he’s working on it. Trump inherited 108 judicial vacancies, thanks in large part to Senate Republicans having obstructed former President Obama’s nominations.... And he is nominating the hardest core of the hard right, essentially building a pipeline from the Federalist Society to the federal bench
Donald Trump Is In The Perfect Position To Dramatically Remake The Courts: With 100+ judicial vacancies and a Senate eager to fill them, conservatives are salivating. (Huffington Post, 06/22/17)
By Jennifer Bendery, Alissa Scheller: the main reason is Republicans’ years-long strategy of denying votes to Obama’s court picks. They refused to recommend judicial nominees, filibustered others, used procedural rules to drag out the confirmation process and, by Obama’s final year, blocked nominees they had recommended just to prevent him from filling more seats.... Trump nominated [John] Bush, 52, last month to a lifetime post on the 6th U.S. Circuit Court of Appeals. Progressive groups are vowing to fight his confirmation given some of his past remarks, which include comparing abortion to slavery and referring to them as “the two greatest tragedies in our country.” Bush has also said he strongly disagrees with same-sex marriage, mocked climate change and proclaimed “the witch is dead” when he thought the Affordable Care Act might not be enacted. Damien Schiff, also a member of The Federalist Society, is Trump’s nominee to the U.S. Court of Federal Claims. ... He came under fire for calling Supreme Court Justice Anthony Kennedy “a judicial prostitute” on a blog several years ago. He has also criticized efforts to prevent bullying of LGBTQ students, referring to messages of equality as “teaching ‘gayness’ in schools,” and has argued that states should be allowed to criminalize “consensual sodomy.”... Blue slips are more of a committee tradition than a hard rule, but chairmen typically uphold it. Grassley’s predecessor, Sen. Patrick Leahy (D-Vt.), stuck by the practice for years when he was chairman ― even when Republicans routinely abused it to block Obama’s nominees. He suspects Grassley will abide by the tradition, too.
“Sen. Grassley made it very clear that he appreciated what I did when there was a Republican president and Democratic president, applying the blue slips,” Leahy told HuffPost.
“He told me he was going to follow the same procedures as chairman. And I take him at his word,” he added. “I’ve known him for over 30 years. He’s never broken his word to me.”
Trump’s Finally Filling the Judicial Back Bench with Some Questionable Rookies: Some of his nominees run into trouble with their snarky blogs. Remember kids that stuff you write online never really goes away. (Moyers & Company, 06/21/17)
"President Trump has a great opportunity to determine the character of the federal bench. Because the Senate only confirmed 20 of Obama’s nominees during his last two years in office, (less than a third of the number confirmed during the last two years of Reagan, Clinton and George W. Bush) he has a slew of vacancies to fill.... John Bush, a 52-year-old 6th Circuit nominee from Kentucky, and Damien Schiff, a 37-year-old nominee for the US Court of Federal Claims from California, made headlines when they were quizzed about their social media presences. What the president is to Twitter — these guys are to blogging in the Senate.
Slate‘s Dahlia Lithwick lays out the questionable posts in detail: ... But the real drama lies in the Q and A of the hearings. NPR’s Nina Totenberg has a fuller rundown"
Trump’s first judicial nominees: a right-wing blogger, an anti-gay lawyer, and two Obama holdovers (Quartz, 06/21/17)
Lola Fadulu: Many of these seats are vacant because the Republican-controlled Senate refused for several years to start the nomination process for president Barack Obama’s nominees, often after state senators vetoed the candidates. ... Civil rights advocates say some of Trump’s early nominees are troubling because they lack diversity, both racially and professionally. ... John Kenneth Bush is Trump’s nominee for the Sixth Circuit.... While blogging, he consistently cited WorldNetDaily, a group the Southern Poverty Law Center has deemed an extremist group for peddling conspiracy theories and white nationalism, including the lie that Obama was not born in the United States.... Damien Schiff, Trump’s nominee for the US Court of Federal Claims, called Supreme Court justice Anthony Kennedy a “judicial prostitute” in a post.
Schiff also strongly disagreed with the Supreme Court’s decision in Lawrence v. Texas, which ended punishment for sodomy. And he criticized a school district for teaching students that homosexual families and heterosexual families are equally moral.... Trump’s nominees include two Obama nominees, David C. Nye and Scott L. Palk, whose appointments expired
Trump’s Most Lasting Legacy? America’s courts—presently a thorn in the president’s side—are about to get a lot more conserve ative. And they will probably stay that way for a very long time. (Atlantic, 06/21/17)
Alex Wagner: John Bush, a nominee to the 6th Circuit federal appeals court and Damien Schiff, a nominee for the federal Court of Claims.... are two of President Trump’s thus far 21 picks for the nearly 130 vacancies on the federal bench, an excess of open slots that exist mostly because of unprecedented Republican resistance to the confirmation of President Obama’s judicial nominees. ... Given the extraordinary power of the courts today—especially as a check on the legislative and executive branches—a judicial branch populated with men like Bush and Schiff could mightily shift the political landscape of the United States, well after Trump has left office.
Both Schiff and Bush arrived at their hearings carrying excess baggage in the form of controversial writing. Bush, a corporate lawyer, had previously .... cited, by way of a source, World Net Daily — a website that the Southern Poverty Law Center characterizes as “devoted to manipulative fear-mongering and outright fabrications designed to further … paranoid, gay-hating, conspiratorial and apocalyptic visions.”... Schiff’s most notable post was the one in which he labeled Justice Anthony Kennedy “a judicial prostitute”... the relatively young age of his stable could cement in place a conservative judiciary for decades to come.
Trump Judicial Nominee Promoted Work Of Right Wing Conspiracy Theorists in Blog Posts (Right Wing Watch, 06/20/17)
Safiyah Riddle: At hearings last week on the confirmation of John K. Bush to a lifetime seat on the 6th Circuit Court of Appeals, a nomination which People For the American Way has opposed, Bush was forced to defend a blog post he had written citing WorldNetDaily, a website infamous for promoting the birther conspiracy theory.
But that wasn’t the only incidence of Bush relying on radical right wing sources in his stint as a blogger .... At best, Bush’s frequent citation of these far-right commentators was irresponsible—in which case, one must call into question his ability to discern fact from unproven conspiracy theories. At worst, he knew exactly who he was citing and chose to do so anyway.