Editorials and Opinion
Trump’s War on LGBTQ People Has Reached the Courts (Medium, 06/13/17)
Sharon McGowan, Lambda Legal: Donald Trump has once again shown his true colors by nominating two individuals with records replete with anti-LGBT views and homophobic rhetoric of a bygone era.
As a result, this week, numerous allies joined Lambda Legal in calling on the Senate Judiciary Committee to reject the nominations of John K. Bush and Damien Schiff.... Although Mr. Bush doesn’t have any judicial experience, his writings illustrate his clear hostility towards the rights of LGBT people and everyone living with HIV.... When was the last time you heard about a nominee for a lifetime appointment to the federal judiciary who thought it was acceptable to use the term “faggot” in a public address? Surprise! Mr. Bush is that person.... Could it get any worse? I didn’t think so, until I learned about Damien Schiff.... nominated to serve as a judge on the U.S. Court of Federal Claims. His nomination is equally frightening to the LGBT community, as his writings reveal an antipathy toward legal equality for LGBT people and other populations that depend on the federal judiciary.
Federal Courts Won’t Save Us if We Don’t Save the Federal Courts: We can’t depend on the Trump administration or on Congress to protect civil rights. So we need to save the courts (Medium, 06/13/17)
The Leadership Conference: As The Leadership Conference has long recognized, the composition of the federal judiciary is a civil and human rights issue of profound importance because federal judges are charged with dispensing justice .... That’s why we fought so hard to block Trump’s Supreme Court nominee, Neil Gorsuch, and why we’re fighting to prevent other extreme Trump rubberstamps from being confirmed to the federal bench. John K. Bush, nominated to serve on the U.S. Court of Appeals for the Sixth Circuit, and Damien M. Schiff, nominated to serve on the U.S. Court of Federal Claims, are both appearing before the Senate Judiciary Committee tomorrow — and neither of them would be the independent and impartial federal judges America needs.
Bush and Schiff have a history of blogging on topics that make them unfit to serve on the federal bench .... There’s one disturbing example after another in AFJ’s reports and in our letters on these and many other issues, like environmental rights, property rights, judicial activism, police misconduct, and voter fraud.
The Top 5 Most Offensive Statements from Trump’s Judicial Nominees (Daily Kos, 06/13/17)
Michele Jawando: President Trump recently nominated two lawyers with a history of offensive online remarks, in addition to statements in legal briefs .... John Bush, a nominee for the 6th U.S. Circuit Court of Appeals [and] Damien Schiff, a lawyer with the anti-environmentalist Pacific Legal Foundation, to the U.S. Court of Federal Claims, which hears lawsuits against the government. ... Schiff called Justice Anthony Kennedy “a judicial prostitute" ... Schiff, who made a career challenging environmental regulations, accused the Environmental Protection Agency of “treating American citizens…as if they were just slaves.”
In a brief defending the Virginia Military Institute’s former male-only admissions policy, Bush argued that the education offered by VMI “does not appear to be compatible with the somewhat different developmental needs of most young women.”
Serious Concerns About 11th Circuit Nominee Kevin Newsom (People For blog, 06/12/17)
Paul Gordon: People For the American Way sent the following letter to Senate Judiciary Committee members to express our serious concerns about Kevin Newsom, President Trump’s nominee to the U.S. Court of Appeals for the Eleventh Circuit. You can download the letter here.
The Courts Have Halted Trump’s Bigoted Policies, But the Senate Wants to Confirm All His Judges (Center for American Progress, 06/12/17)
Billy Corriher and Anisha Singh: Many federal judges will consider these questions of executive power and government discrimination during the next few years, and President Trump could nominate hundreds of judges for lifetime appointments that last decades. ... Michigan Supreme Court Justice Joan Larsen has been nominated to the U.S. Circuit Court of Appeals for the 6th Circuit, and she has a broad view of the president’s authority over national security. ... Justice Larsen, who had been a judge for less than a year before she found herself on President Trump’s list of potential Supreme Court nominees, co-authored a classified OLC brief on whether suspected terrorists can challenge their indefinite detention in court.... Before confirming any of President Trump’s judicial nominees, the Senate must demand to know whether they will rubber-stamp his discriminatory agenda.
Look Who’s Talking? (Justice Watch, 06/09/17)
"Senators Lee, Cornyn, and Grassley said that [filibustered 9th Circuit nominee Goodwin] Liu should not be confirmed because he questioned whether Justice Alito would turn a blind eye to discrimination and expressed concern that Justice Alito would apply the law in a “mechanical way abstracted from human experience.” Surely, at [Court of Federal Claims nominee Damien] Schiff’s confirmation hearing on Wednesday, Senators Lee, Cornyn, and Grassley will raise the same concerns about Schiff’s suitability for the bench based on his remark that Justice Kennedy is “a judicial prostitute,” and his assertion that Justice Kennedy is intellectually dishonest for not applying the law neutrally, but in a way that will bring him the most attention from the academy and the media.... Chairman Grassley was up in arms over [district court nominee Stephen] Bough’s blogging and we expect that he will take a similar stance on 6th Circuit nominee John K.] Bush’s crude and coarse writings. For that matter, Chairman Grassley might consider questioning Schiff on some of his more offensive blog posts, too."
John K. Bush Should Not be Confirmed to the 6th Circuit (People For blog, 06/09/17)
Marge Baker: People For the American Way sent the following letter to Senate Judiciary Committee members to express our opposition to the confirmation of John K. Bush to the United States Court of Appeals for the Sixth Circuit. You can download this letter here.
Trump’s Judicial Picks Are Keeping Republicans Happy—and Quiet: In a rare show of competency, he's tapped five times as many judges as Obama had at this point—and conservatives are delighted. (The New Republic, 06/09/17)
David Dayen: Trump was blessed—thanks mostly to a virtual freeze on judicial confirmations in the last two years of the Obama presidency—with more opportunities than Obama. ... Republicans see appointing ridigly conservative judges as a central part of their policy strategy. Obama, like Bill Clinton before him, used judicial nominations as an opportunity for bipartisan comity.... Under Obama, Senate Judiciary Committee Chairman Patrick Leahy honored the blue-slip tradition, and Republicans predictably invoked the privilege, making it impossible to nominate judges to a state with a Republican senator. Under Trump, the GOP has already talked about eliminating the blue slip rule for the circuit courts, or even doing away with it altogether. ... If Republicans change the rule, it would be all too typical. When Republicans hold the Senate and want a president to get judges through, they relax blue-slip rules. When the president is a Democrat, they tighten them. Democrats have adhered to blue-slip traditions regardless of who sits in the Oval Office.
The Consultation Double-Standard (Vetting Room, 06/09/17)
Harsh Voruganti: Let’s compare excerpts from the Senate Judiciary Questionnaires of ... judicial nominees: ... The contrast is stark. Compared to the Obama Administration, the Trump Administration has engaged in no pre-nomination consultation with Democratic Senators, instead cutting them out of the process. Now, Senate Republicans are debating whether to support their Democratic colleagues on this issue, or to cut off one of their only avenues for recourse: the blue slip.... On March 2, 2009, shortly after President Obama had been sworn into office with a large Democratic Senate majority, all 41 members of the Senate Republican conference sent him a letter with a clear missive: consult Republican home-state senators on nominees, or face a filibuster.... To his credit, President Obama worked assiduously to engage Republican Senators on judicial nominees, allowing them to name circuit and district court candidates from their states, and refusing to nominate judges when he could not reach an agreement with home-state senators. For his part, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) backed up his Republican colleagues by refusing to move forward with any nominee who did not have positive blue slips returned from both home-state senators, regardless of their party.
In the six years that President Obama and Chairman Leahy served together, two circuit and seven district court nominees were blocked based on senatorial courtesy and blue slips .... When Republicans took over the Senate majority in 2014, new Chairman Chuck Grassley continued to strictly enforce senatorial courtesy and blue slips. During the last two years of the Obama Administration, blue slip use by Republicans ramped up, and the following nominees were blocked .... Tradition and principles aside, there are many practical reasons for keeping the blue slip.... While Senate Republicans may be able to muscle through a judge being blocked only based on ideology, it is hard to see them pushing a judge whose nomination was made with no consultation whatsoever.
In other words, if the Trump Administration wants to see these nominees move, they’d do well to bring home state Democrats on board.
EDITORIAL: When not to roll over the opposition: The Senate should think twice about eliminating the 'blue slip. (Washington Times, 06/08/17)
"[N]othing is permanent, and in politics not even very long-lasting.
Republicans should take the lesson to heart. ... A senator vetoes a nominee by returning a blue slip to the Judiciary Committee, signaling objection. ... The Democrats abided by the blue-slip tradition during the Obama years, enabling Republicans to kill some of Mr. Obama’s more extreme liberal nominees. Sen. Charles E. Grassley of Iowa, on becoming the chairman of the Senate Judiciary Committee in April 2015, wrote in op-ed essay in the Des Moines Register that “I appreciate the value of the blue-slip process and also intend to honor it.”... As sure as the wind blows, Democrats will one day reclaim control of both the presidency and the Senate, and when that happens the blue slips will look attractive to Republicans, after all. The wheel that goes around comes around."
A first look at Third Circuit nominee Stephanos Bibas (CA3blog, 06/08/17)
Matthew Stiegler: Early conservative reaction to Bibas’s nomination has been glowing.... Bibas’s paper trail is simply gargantuan.... Bibas is a bold and fascinating choice. I can’t wait to see how this plays out.
Counterpoint: Stras nomination for federal appeals court must be blocked: The Minnesota Supreme Court justice has the track record of a conservative ideologue. (Minneapolis Star Tribune [MN], 06/08/17)
Beth Gendler, National Council of Jewish Women, Minnesota: the record of Justice David Stras of the Minnesota Supreme Court indicates he would be neither independent nor fair-minded if confirmed to the Eighth U.S. Circuit Court of Appeals .... Stras is clearly in the mold of an ultra-right-wing conservative, and his nomination by President Trump must be blocked.... It can only be described as profoundly disturbing that Stras would label school integration “contentious” more than 50 years after Brown vs. Board of Education .... From the bench, Stras has issued a number of highly questionable legal opinions. ... he already has compiled an inescapable paper trail. It is that of a judge driven by conservative ideology and falling short of judicial independence and evenhandedness. For all of these reasons, we urge Minnesota’s U.S. senators, Al Franken and Amy Klobuchar, to oppose this nomination.
Progressives Launch Campaign Against Anti-Choice, Anti-LGBTQ Judicial Nominee: Donald Trump’s nominee to the 6th Circuit, John Bush, is in for a fight. (Huffington Post, 06/07/17)
Jennifer Bendery: Trump has nominated John Bush, a Kentucky lawyer, to the U.S. Court of Appeals for the 6th Circuit. On Wednesday, 10 organizations urged Democrats on the Senate Judiciary Committee to reject the nominee.
“Bush has expressed biased and offensive positions on wide-ranging issues,” reads a letter from the groups, including NARAL Pro-Choice America, the American Federation of Teachers and MoveOn.... Another group, the Leadership Conference on Civil and Human Rights, announced Wednesday that it will also fight Bush’s nomination.
“John K. Bush is unworthy of a lifetime appointment as a federal judge,” said Vanita Gupta, the organization’s president and CEO. “His extreme ideology and record clearly shows an open and unabashed hostility to women and LGBT people, campaign finance reform, and Democrats. ... We urge the Senate to reject this nominee.”
‘TRIPLE THREAT’ Trump’s Terrible Judicial Trifecta: Passing on alt-right conspiracies. Railing about ‘teaching gayness.’ Arguing for leniency to sentence minors to death. And these three nominees are expected to be confirmed easily. (Daily Beast, 06/07/17)
Eleanor Clift: if there were a 60-vote threshold, they wouldn’t stand a prayer’s chance of getting a lifetime appointment to the Sixth or Eleventh Circuit, or in the case of 38-year-old Damien Schiff, a 15-year appointment to the Court of Federal Claims, positioning him for the Ninth Circuit.... Louisville lawyer Bush, slated for the Sixth Circuit, is the most problematic. ... Schiff called Kennedy “a judicial prostitute” for “selling his vote as it were to four other Justices ... Schiff has called Earth Day “a threat to individual liberty and property rights,” and blames environmental regulations for contributing to California’s drought. He favors selling off public lands and once suggested Yosemite be turned over to Disney.... Alabama’s Kevin Newsom ... is positioned for a lifetime appointment on the Eleventh Circuit is what rankles Democrats. The vacancy occurred in 2013, and in February 2016 Obama nominated U.S. District Court Judge Abdul Kallon from Birmingham to fill the seat. He would have been the first African-American from Alabama to sit on the Eleventh Circuit. He never got a hearing. Sen. Jeff Sessions, who is now attorney general, never returned the blue slip that would have facilitated Kallon’s confirmation.
How Trump is stalling his own nominees: The White House has taken weeks to formally submit nominations to the Senate, even after announcing the picks.The White House has taken weeks to formally submit nominations to the Senate, even after announcing the picks. (Politico, 06/06/17)
"President Donald Trump is lashing out at Democrats for allegedly stalling his appointments and agenda, but it’s his own administration that is frequently sitting on the necessary paperwork for nominees.... Trump rolled out a batch of 10 judicial nominations to much fanfare on May 8, but two of them have yet to arrive on Capitol Hill.
“We wouldn’t nominate people until they were cleared by OGE and maybe they’re not doing that,” said Christopher Kang, who served as deputy counsel in the Obama White House. “I don’t see any strategic reason — or any reason, really — to take this long to send up the official paperwork.”
Despite the lag on some nominations early in Obama’s tenure, Kang said by 2011, paperwork for judicial candidates were usually sent to the Senate on the same day they were formally announced by the White House. Executive branch nominations — who require OGE signoff, while judicial nominees do not — sometimes faced short delays, but rarely as long as a month."
NOMINATING JUDGE HUMETEWA TO THE NINTH CIRCUIT (Los Angeles Review of Books Blog, 06/02/17)
Carl Tobias: The jurist’s decision to become a senior judge furnished President Donald Trump a valuable opportunity to appoint U.S. District Judge Diane Humetewa of Arizona as the first Native American federal appellate jurist. Because she is a highly qualified, mainstream judge and the court — which had four vacancies on January 1, 2017 — needs all of its jurists, the President should promptly nominate Judge Humetewa. In September 2013, President Barack Obama named Humetewa to the District of Arizona.... Between 1993 and 1996, Humetewa served as Deputy Counsel for the Senate Indian Affairs Committee, a position with longtime Arizona Republican Senator John McCain.
Across Humetewa’s exemplary career, she participated in the federal justice system and emphasized legal issues central to Native Americans, areas which have crucial relevance for Ninth Circuit courts....In Humetewa’s January 2014 hearing, McCain lauded her extensive public sector activity while pressing for “swift confirmation.” McCain pointedly declared that Humetewa’s approval would be historic, ... On May 14, the Senate confirmed her 96-0 following brief debate.... The White House must assiduously consult McCain and Flake, who should be very supportive,
Damien M. Schiff – Nominee to the U.S. Court of Federal Claims (Vetting Room, 06/02/17)
Harsh Voruganti: Schiff is only thirteen years out of law school, and has spent virtually his entire legal career in one position: working for the libertarian Pacific Legal Foundation.... Schiff’s confirmation to the CFC could nonetheless open up a lifetime appointment. Judge Alex Kozinski of the Ninth Circuit and former Judge Randall Rader of the Federal Circuit both served as CFC judges before their appellate appointments. At 38, Schiff is young enough to be elevated in a few years to an appellate court, and potentially even further.
As such, it is incumbent on the Senate Judiciary Committee to carefully probe Schiff’s writings, and ensure that his strongly held political views would not affect his rulings as a judge. It also falls upon Schiff to clarify some of the more aggressive opinions he has taken, particularly his reference to Justice Kennedy as a “judicial prostitute.” After all, every litigant, regardless of whether they are before the Supreme Court, or the CFC, deserves an impartial and qualified judge.
GOP moving Trump's judges too SLOWLY? Hardly. (People For blog, 05/31/17)
Paul Gordon: Conservatives are in such a rush to shift America’s judiciary rightward that they’ve lost all sense of perspective. ... Like Trump, President Obama’s first lower court judicial nominee was for a circuit court. Due to constant GOP obstruction, it took 247 days for him to be confirmed. In contrast, Trump’s first lower court nominee—Amul Thapar, for the Sixth Circuit—zipped from nomination to confirmation in just 65 days.... 65 days for Trump’s first nominee vs. 247 days for Obama’s, and Republicans say the process is moving too slowly??
Will Grassley Rubber Stamp Trump Nominees? (Iowa Labor News, 05/30/17)
"Senator Chuck Grassley has suggested in recent weeks that as Chair of the Judiciary Committee he may give more deference to blue-slips when it comes to district court nominations than circuit court nominations, inaccurately claiming that this has “historically” happened. Ranking member of the Judiciary Committee, Senator Dianne Feinstein, has requested that the blue-slip process continue, with home-state Senators approving judicial nominees. Feinstein has further explained that blue-slips were used consistently for both district and circuit court nominees throughout the Obama administration under Democratic and Republican leadership.
The blue-slip process that allows home state Senators input and approval on judicial nominees is critical, as Senator Grassley has stated many times in the past (quoted below)."
Recalibrating Judicial Renominations in the Trump Administration (Washington and Lee Law Review, 05/30/17)
Prof. Carl Tobias: Republican obstruction meant that the upper chamber approved only twenty jurists during the whole 114th Congress, leaving 105 unfilled positions and fifty-one expired nominations upon its end. ... Several persuasive reasons can support renominating many of the accomplished, mainstream candidates whose nominations did expire in early January. First, renomination would preserve scarce time, money, and energy, which must be devoted to restarting the nomination process. For instance, the
twenty district court candidates already have American Bar Association (ABA) evaluations with ratings, Federal Bureau of
Investigation (FBI) background checks and committee investigations, hearings, and voice vote approvals without dissents, so that nearly all of the picks will only require chamber debates, when merited, and floor ballots.... President Obama correspondingly selected the twenty fine, mainstream trial level nominees principally for their intelligence, diligence, ethics, independence, and balanced judicial
temperament, especially their capability to manage and resolve substantial caseloads, rather than ideology.33 GOP lawmakers
concomitantly suggested and powerfully supported a majority of the nominees. Even the three very competent, moderate
appellate designees were nominated mainly for reasons divorced from ideology, phenomena witnessed in bipartisan support for their committee approval. Renomination would correspondingly diversify the federal
judiciary, because five of the twenty renominees will bring ethnic diversity while ten comprise women and two in three circuit
renominees would provide ethnic or gender diversity.... [President Trump] can seat many jurists by renominating numerous impressive, mainstream Obama nominees, whose efficient appointments will permit the courts to better deliver justice.
Flashback: Lower Court Nominee Once Called Justice Kennedy A ‘Judicial Prostitute’ (Daily Caller, 05/28/17)
Kevin Daley: President Donald Trump’s first nominee to the U.S. Court of Federal Claims, Damien Schiff, once described Justice Anthony Kennedy as a “judicial prostitute” in a blog post .... Politico reported his inflammatory remarks came in response to a 2007 SCOTUSblog post .... Schiff’s nomination could adversely affect the administration’s quiet efforts to coax Kennedy into retirement.
President Trump’s New Nominee Called Justice Kennedy a “Judicial Prostitute” (Justice Watch, 05/26/17)
President Trump has nominated Damien M. Schiff, Senior Attorney at the Pacific Legal Foundation and member of The Federalist Society, for a seat on the U.S. Court of Federal Claims. As noted in his Senate Judiciary Questionnaire, in a series of blog posts on both the Pacific Legal Foundation’s Liberty Blog and his own personal blog entitled Omnia Omnibus, as well as in other writings, Schiff repeatedly demonstrates his extreme views and his unfitness to serve as a judge.
First, Schiff’s writings include personal attacks on the integrity of a sitting Supreme Court justice, advocates, and progressives. This alone demonstrates he lacks the judicial temperament to serve as a judge.
Second, Schiff’s writings demonstrate a blatant disregard for the importance of critical rights and protections relied on by millions of Americans and an extreme devotion to political ideology.
Finally, Schiff, who has devoted his career to weakening environmental laws and other legal protections, has made clear that he believes the role of a judge is not to neutrally apply facts to the law. Rather, he has called for a “reinvigorated constitutional jurisprudence, emanating from the judiciary” that would “overturn precedents upon which many of the unconstitutional excrescences of the New Deal and Great Society eras depend.” In achieving that goal, Schiff has called on President Trump to rescind environmental and regulatory reforms and has stated that OSHA is unconstitutional.
Will He or Won’t He? How Justice Anthony Kennedy’s retirement decision became a battle over the judiciary and the Trump presidency. (Slate.com, 05/26/17)
Dahlia Lithwick: Court watchers across the political spectrum seem to agree that Trump’s reckless disregard for the judicial branch and separation of powers will make it harder for the justice to leave his storied judicial legacy in the hands of a President Trump. This is, after all, the same president who just named Damien Schiff of the Pacific Legal Foundation to serve on the U.S. Court of Federal Claims—Schiff being the man who posted on his personal blog 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.”*
The Blue-Slip Rule Is On Its Last Legs (Mother Jones, 05/26/17)
Kevin Drum: Were Republicans snickering in private for six years because Democrats continued to be Boy Scouts during the Obama presidency, respecting the blue-slip rule despite blanket Republican opposition of the kind that Republicans now say will prompt them to kill it? Probably. Was it the right thing to do anyway? I guess I'm still unsure. But it sure doesn't look like it.... both Bill Clinton and Barack Obama simply gave up nominating judges in states where there were any Republican senators. They would object as a matter of course and their objections would be honored. George Bush, by contrast, continued nominating judges everywhere.
Republicans Love the Blue Slip (People For blog, 05/26/17)
Paul Gordon: in 2008, every Republican senator—including the current majority leader, Mitch McConnell— signed on to a letter vowing to oppose any judicial nominee who lacked support from a Republican home state senator. In other words, they insisted that both blue slips be submitted before doing anything on a nomination .... Then-Chairman Patrick Leahy, a Democrat, followed the blue slip practice the entire time he was chairman, during the presidencies of both George W. Bush and Barack Obama.... circuit courts have longtime vacancies that exist only because no hearing was held for an Obama nominee who got a blue slip from only one senator, not both ... When Chuck Grassley became chairman of the committee after the 2014 elections, he made a promise to Iowans in a local newspaper: ... "Over the years, Judiciary Committee chairs of both parties have upheld a blue-slip process, including Sen. Patrick Leahy of Vermont, my immediate predecessor in chairing the committee, who steadfastly honored the tradition even as some in his own party called for its demise. I appreciate the value of the blue-slip process and also intend to honor it." ... In 2014, Orrin Hatch—the committee’s longest-serving Republican and its former chairman—fiercely defended the practice of requiring both home state senators’ approval before moving on a judicial nominee: "Weakening or eliminating the blue slip process would sweep aside the last remaining check on the president’s judicial appointment power. Anyone serious about the Senate’s constitutional “advice and consent” role knows how disastrous such a move would be. … I’m glad Chairman Leahy has preserved the blue slip process. It should stay that way." ... Nebraska’s Ben Sasse (also a committee member) explains the central role that home state senators play both before and after nomination. ... Chairman Grassley should resist any pressure he is getting to change the blue slip policy.
The conservative mind has become diseased (Washington Post, 05/25/17)
Michael Gerson, syndicated column: Those conservatives who believe that the confirmation of Justice Neil M. Gorsuch is sufficient justification for the Trump presidency are ignoring Trump’s psychic and moral destruction of the conservative movement and the Republican Party. Clinton, with a small number of changed votes, would have defeated Republicans. But Trump is doing a kind of harm beyond anything Clinton could have done. He is changing the party’s most basic moral and political orientations. He is shaping conservatism in his image and ensuring an eventual defeat more complete, and an eventual exile more prolonged, than Democrats could have dreamed.
Senate GOP used “blue slips” to block Obama judicial nominees, but now wants to trash the practice (Brookings, 05/25/17)
Russell Wheeler: "Blue slips” are blue-paper forms that Senate Judiciary Committee chairs send to home-state senators asking if they approve of judicial nominees in their states. During the Obama administration, a Democratic or Republican negative or unreturned blue slip killed the nomination. Pre-2009 chairs may have enforced laxer versions of the practice, but the 2009-16 chairmanships of Patrick Leahy (D-Vt.) and Charles Grassley (R-Iowa) allowed no exceptions. ... Senators used their blue slip prerogatives to forestall or veto nominations and give Trump over 100 in-place and announced vacancies, including over 30 that never had nominees.
Negative blue slips produced some dead-on-arrival Obama nominations, but the more pervasive impact of aggressive blue-slip were no nominations (“what’s the use?”) or extended White House-senator bargaining in search of mutually acceptable, or at least tolerable, nominees....Indeed, as to matters democratic, Obama’s elections, by fairly substantial majorities, should have given him greater authority to reshape the federal judiciary than did Trump’s, who squeaked into office with a substantial popular vote loss.
Protect the Senate: The Minority You Save May One Day Be Your Own (Morning Consult, 05/25/17)
Mac Campbell, OP-ED CONTRIBUTOR: As citizens, we should worry about the Senate and provide its members the political support they must have to withstand rabble-induced pressure to self-erode their power.
There is a quasi-judicial framework of rules and precedents that govern the Senate and equip minorities with the ability to sedate action and limit the tyrannical impulses of majorities, be they partisan or popular.... In the coming months, the mob will exert even more pressure on the Senate to enfeeble itself. ... Will Senate Republicans continue to respect the ancient “blue slip” prerogative that gives senators a modicum of sway over federal appointees who would govern in their home states? Perhaps.... Only informed and vigilant voters can enable the Senate to arrest its slide from the guardian of liberty to a gaggle of lemmings. Write your elected officials and express concern. The minority you save may one day be your own.
How Trump plans to remake the lower courts (The Hill, 05/24/17)
Opinion by Prof. Jonathan R. Nash: Justice Joan Larsen (currently a Justice on the Michigan Supreme Court) for a seat on the United States Court of Appeals for the Sixth Circuit and Justice David Stras (currently a Justice on the Minnesota Supreme Court) for a seat on the United States Court of Appeals for the Eighth Circuit — were on the list of 21 names from which, during the presidential campaign, Mr. Trump promised to select his nominee to replace deceased Supreme Court Justice Antonin Scalia ... suggests continued influence of the Federalist Society and the Heritage Foundation.... President Trump has nominated Damien Schiff to a seat on the United States Court of Federal Claims. [The court's docket includes] claims for “Takings” of private property.
The nomination of Judge Schiff is especially interesting, since Schiff has been serving as a lawyer with the Pacific Legal Foundation, a self-described national conservative/libertarian public interest law firm.
In that capacity, Schiff has argued in favor of a broad understanding of compensable Takings. Thus, his nomination to the Court of Federal Claims may signal the President’s desire to augment the protection of private property rights against government infringement.